Press Release on PA Supreme Court ruling

DECEMBER 20, 2013

Contact: Marcellus Protest
(724) 485-9835


(PITTSBURGH, PA) – Yesterday, the Pennsylvania Supreme Court, in a 4-2 decision, declared significant portions of PA Act 13 unconstitutional. Act 13, enacted by the PA State Assembly in February of 2012, governs the conduct of shale gas drilling, commonly known as "fracking."

Act 13 was written by industry lobbyists and enacted without any public hearings. PA legislators and Governor Tom Corbett called it "the toughest drilling law in the country." It was - tough on citizens and municipalities alike that found that their constitutional rights were taken away in favor multi-national oil and gas corporations who were provided a "use by right" in all zoning districts in PA.

Marcellus Protest, a grassroots group in SWPA, joined numerous other anti-fracking groups that filed an Amicus brief in the case and was represented by Earthjustice.

Chief Justice Castile (R ) penned the Majority opinion and was joined by Justices Todd (D) and McCaffery (D).

Justice Baer (D) joined Parts I, II, IV, V, and VI(A), (B), (D)-(G) of the Opinion and filed a Concurring Opinion.

Justice Saylor (R) filed a Dissenting Opinion and was joined by Justice Eakin (R).

The Court made its ruling on the grounds that it violates the Environmental Rights Amendment to the Pennsylvania Constitution (Article I, Section 27).

Notably, the Court stated, ““As the citizens illustrate, development of the natural gas industry in the Commonwealth unquestionably has and will have a lasting, and undeniably detrimental, impact on the quality of these core aspects [life, health, and liberty: surface and ground water, ambient air, etc.] of Pennsylvania’s environment, which are part of the public trust.” (See Opinion at 117).

The Court also allowed for future challenges on the infamous "physicians gag order;" something the Commonwealth Court did not allow for in its decision last year.

Justices Castille, Todd, and McCaffrey held that the provisions violate Article I, Section 27 of the Pennsylvania Constitution – the Environmental Rights Amendment. Justice Castille stated, “we agree with the citizens that, as an exercise of the police power, Sections 3215(b)(4) and (d), 3303, and 3304 are incompatible with the Commonwealth’s duty as trustee of Pennsylvania’s public natural resources.”

In discussing Section 3304’s uniform zoning provisions, Justices Castille, Todd, and McCaffrey agreed that the provisions “sanctioned a direct and harmful degradation of the environmental quality of life in these communities and zoning districts.” They also concluded that the Act forced some citizens to bear “heavier environmental and habitability burdens than others” in violation of Section 27’s mandate that public trust resources be managed for the benefit of all the people.

Justice Baer concurred in finding Act 13 unconstitutionality, agreeing with the Commonwealth Court’s reasoning. Justice Baer stated that the provisions “force municipalities to enact zoning ordinances, which violate the substantive due process rights of their citizenries.” He further noted “Pennsylvania’s extreme diversity” in municipality size and topography and that zoning ordinances must “give consideration to the character of the municipality,” among other factors, which Act 13 did not.

The municipalities of South Fayette, Jefferson Townships in Allegheny County, Robinson, Cecil and Mt. Pleasant Townships in Washington County, along with two eastern PA municipalities, the Boroughs of Yardley and Nockamixon, Bucks County, filed the landmark case. The Delaware Riverkeeper Network and, Monroeville, PA physician Mehernosh Kahn, M.D. were also named parties in the case.

Many legal experts expect additional litigation against the Frackers as a result of this landmark decision.

Attorney John Smith, of Smith Butz Law in Canonsburg, PA, headed the legal team. The following attorneys in the Commonwealth and Supreme Court cases joined him: Jennifer Schavioni, Jonthan Kamin, Jordan Yeager, Lauren Williams, Susan Krahm and William Johnson.

Marcellus Protest extends its sincere thanks and appreciation all who have worked so diligently for environmental justice and the rule of law in both Pennsylvania and around the world. In particular we thank those elected officials who took bold action in initiating this case and the dedicated attorneys who represented them.

Municipalities represented by Natural Resources Defense Council as Friends of the Court
Wilkins Township, Allegheny County
East Finley Township, Washington County
Tinicum Township, Bucks County
Municipality of Murrysville, Westmoreland County
Municipality of Monroeville, Allegheny County
Borough of Bell Acres, Allegheny County
City of Bethlehem, Northampton and Lehigh Counties

Other Amicus Briefs filed in support of Commonwealth Court decision
Pennsylvania Chapter of the American Planning Association
Pennsylvania State Association of Boroughs
Pennsylvania State Association of Township Supervisors
Pittsburgh City Council
Mountain Watershed Association

Nonprofit organizations represented by Earthjustice as Friends of the Court
Berks Gas Truth
Brockway Area Clean Water Alliance
Clean Air Council
Clean Water Action
Damascus Citizens for Sustainability
Earthworks, Environmental Defense Fund
Gas Drilling Awareness Coalition of Luzerne County PA
Group Against Smog and Pollution
Pennsylvania Division of the Izaak Walton League
League of Women Voters of Pennsylvania
Lehigh Valley Gas Truth, Local Authority Western PA
Marcellus Outreach Butler
Marcellus Protest
Responsible Drilling Alliance
Sierra Club
Thomas Merton Center
Westmoreland Marcellus Citizen’s Group