Pennsylvania Supreme Court strikes down major portions of Act 13 as unconstitutional

Late yesterday, the Pennsylvania Supreme Court, in a highly fractured set of opinions, struck down major portions of Act 13, the revised Oil and Gas Act. Four opinions (totaling more than 200 pages) were issued: a majority opinion, a concurring opinion, a dissenting opinion, and a second dissenting opinion. The newest member of the Supreme Court, Justice Stevens, did not author or join any opinion.

The Court's decision:

1. Found all applicants to have standing to sue, including those the Commonwealth Court determined lacked standing;
2. Found the matters not to be non-justifiable and not to be political questions;
3. Found Sections 3215(b)(4) and (d) [allowing the DEP to grant setback waivers in certain situations], 3303 [the preemption provision of the Act], and 3304 [the uniformity provision of the Act] to be unconstitutional and enjoined (while a majority of the Court reached the conclusion that these Sections of the Act were unconstitutional, they could not agree as to why these provisions were unconstitutional, with three Justices holding that the Sections violated the Environmental Rights Amendment to the Pennsylvania Constitution and one Justice concluding that the Sections violated due process rights under that constitution);
4. Found that the rest of Section 3215(b) was not severable from Section 3215(b)(4), which it found to be unconstitutional, and, therefore, was enjoined;
5. Found Sections 3215(c) and (e) also to be not severable and, therefore, also enjoined;
6. Found Sections 3305 through 3309 to be not severable to the extent they enforce or implement the unconstitutional portions of the Act and, therefore, also enjoined;
7. Found that the Commonwealth Court improperly sustained the Commonwealth's preliminary objections to Count IV (claiming Act 13 was a special law) and Count V (claiming the eminent domain provision of Act 13 was improper) and remanded those issues for consideration by the Commonwealth Court;
8. Affirmed the Commonwealth Court's decision finding that Section 3305 (conferring on the PUC the ability to review zoning laws for compliance with the Act) did not violate the separation of powers requirements of the Pennsylvania Constitution; and 
9. Remanded to the Commonwealth Court for a determination as to whether the valid provisions of Act 13 are severable from those the Court found to be unconstitutional.

Norton Rose Fulbright lawyers are reviewing this lengthy and important decision and will issue a Client Briefing in the near future. In the meantime, if you have questions about this decision or its impact on unconventional gas development in Pennsylvania, do not hesitate to contact the authors.

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This article was prepared by Jeremy Mercer (jeremy.mercer@nortonrosefulbright.com or +1 724 416 0440) and Amy Barrette (amy.barrette@nortonrosefulbright.com or +1 724 416 0430) from Norton Rose Fulbright's Energy Practice.