Opening Briefs Filed In the Remand of Robinson Township v. Commonwealth of Pennsylvania

In a decision dated December 19, 2013, the Pennsylvania Supreme Court, Middle District, struck down major portions of Act 13, P.L. ___, 58 Pa. C.S. §§2301-3504 (a substantial re-write of the Commonwealth’s Oil and Gas Act) as unconstitutional. In the 4-2 decision, the Court held that portions of Act 13 violated the Environmental Rights Amendment of the state’s constitution and denied due process rights by “unconstitutionally, as a matter of substantive due process, usurp[ing] local municipalities’ duty to impose and enforce community planning…” The Court remanded the case back to the lower Commonwealth Court to determine whether the valid provisions of Act 13 are severable from those provisions found to be unconstitutional and whether a section of the law that exempts drillers from having to inform owners of private water sources in the event of a potentially contaminating spill near their properties is unconstitutional.

On April 1, 2014, opening briefs were filed in the Commonwealth Court on the remanded issues.

Both the Pennsylvania Department of Environmental Protection and the Pennsylvania Public Utility Commission (PUC) urge severability. In its brief, the PUC states that “when it is reasonably possible to sustain the bulk of a legislative enactment, the courts of the Commonwealth should do so. Here, there are no special circumstances that require – or even suggest the need for – this Court to deploy its red pen any further. It is plain that [certain sections] of Act 13 may operate independently of those provisions that have already been stricken.” The PUC asserts that, in spite of the December 2013 ruling, it retained the authority to review local ordinances regulating oil and gas drilling operations. Specifically, the PUC contends that sections 3305-3309 can be implemented without the sections that were declared invalid. Section 3305 allows the PUC to review local zoning ordinances for compliance with the Municipalities Planning Code (MPC); sections 3306-3307 provide that an aggrieved person can file a lawsuit to invalidate an ordinance that violates the MPC; section 3308 provides that, for noncompliance with the MPC, impact fees may be withheld from the municipality; and section 3309 gives a municipality 120-days to review and amend an ordinance for compliance.
In their brief, the petitioners argue that section 3218.1 of Act 13 which provides that the public water well owners are to receive notice of a spill resulting from drilling operations is unconstitutional because it violates equal protection by excluding notice to owners of private water sources.

The Commonwealth Court has scheduled an en banc argument for May 14, 2014, at 9:30 a.m. (EDT).
This case is Robinson Township, et al v. Commonwealth of Pennsylvania, et al, No. 284 MD 2012, In the Pennsylvania Commonwealth Court.

For additional information on the December 19, 2013 decision, click here.

This post was written by Barclay Nicholson ( or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.