Columbia Law School Students Score Major Environmental Victory in Pennsylvania's Supreme Court

Students in Environmental Law Clinic Partner with Attorneys to Protect Local Communities' Zoning Powers
New York, Dec. 20, 2013—Students from Columbia Law School’s Environmental Law Clinic helped score a hard-fought victory Thursday when the Pennsylvania Supreme Court rejected much of a 2012 fracking law allowing gas companies to drill nearly anywhere in the state regardless of local zoning laws.
The Pennsylvania high court’s 4-2 ruling found that the state’s Marcellus Shale drilling law, or Act 13, is unconstitutional, given the danger of environmental devastation and the restrictions the law placed on municipalities’ rights to govern hydraulic fracturing (“fracking”) and gas drilling in their jurisdictions.
Clinic senior staff attorney Susan J. Kraham and students teamed with other lawyers to represent municipalities, environmental groups, and a physician in the case.  “This is a significant victory for the ability of local governments to control land use within their borders,” said Kraham, a lecturer-in-law and associate research scholar who has spent her legal career representing public interest clients, with a particular focus on environmental and land use law. “It is also an important recognition by the Pennsylvania Supreme Court of the vitality of Pennsylvania’s Environmental Amendment to its Constitution.”
Pennsylvania’s Constitution guarantees citizens’ rights “to clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment,” the court concluded, while the stricken provisions of Act 13 would empower state officials to “act contrary to this right.” “By any responsible account,” the court stated, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generation, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.”
The court also found that the physician, Dr. Mehernosh Khan, had standing to challenge a provision of the law limiting doctors in some instances from informing patients of potential health impacts of fracking, and remanded his petition back to a lower court for further proceedings.
The Environmental Law Clinic has litigated against Act 13 since its passage, winning a series of legal battles in Pennsylvania Commonwealth Court throughout 2012. The Pennsylvania Supreme Court had been deliberating the case for over a year.

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Background courtesy Delaware Riverkeeper Network:
Seven municipalities, Delaware Riverkeeper Network, and Dr. Mehernosh Khan filed a legal pleading in Commonwealth Court on March 29, 2012 challenging Act 13, also known as HB1950, which was signed into law by Governor Corbett on February 14, 2012.  The municipalities are:  Township of Robinson, Washington County; Township of Nockamixon, Bucks County; Township of South Fayette, Allegheny County; Peters Township, Washington County; Township of Cecil, Washington County; Mount Pleasant Township, Washington County; and the Borough of Yardley, Bucks County.   Act 13 amends the Pennsylvania Oil and Gas Act, preempting municipal zoning of oil and gas development.  It also establishes an impact fee on natural gas.  The named Appellants are the Commonwealth of Pennsylvania; Pennsylvania Public Utility Commission (“PUC”); Office of the Attorney General of Pennsylvania; and the Pennsylvania Department of Environmental Protection (“DEP”).
The Petitioners argued that Act 13 is an unconstitutional violation of:  1) Article I, Section 1 of the Pennsylvania Constitution; 2) Section 1 of the 14th Amendment to the United States Constitution; 3) Article III, Section 32 of the Pennsylvania Constitution; 4) Article I, Section 27 of the Pennsylvania Constitution; 5) Article III, Section 3 of the Pennsylvania Constitution; 6) Due Process Principles; and 7) The Doctrine of Separation of Powers.  The legal challenge was considered essentially important for the Appellees because Act 13 guts local zoning of gas and oil operations and endangers public health, natural resources, communities and the environment.

On July 26, 2012 the Commonwealth Court declared the statewide zoning provisions in Act 13 unconstitutional, null, void and unenforceable.  The Court also struck down the provision of the law that required DEP to grant waivers to the setback requirements in Pennsylvania’s Oil and Gas Act.  On October 17, 2012 the Pennsylvania Supreme Court heard argument that Pennsylvania’s Act 13 is unconstitutional, unjustly supersedes all local ordinances related to oil and gas operations, extinguishes municipal zoning of these operations, and exposes the public and the environment to pollution and degradation from these activities.  Attorneys for the case appeared before the Court, which heard the Commonwealth’s appeal of the Commonwealth Court’s declaration that overturned the municipal preemption provisions and environmental waiver provisions of Act 13.   

Original Petitioners in Legal Challenge
Township of Robinson, Washington County
Township of Nockamixon, Bucks County
Township of South Fayette, Allegheny County
Peters Township, Washington County
Township of Cecil, Washington County
Mount Pleasant Township, Washington County
Borough of Yardley, Bucks County
Delaware Riverkeeper Network and the Delaware Riverkeeper
Dr. Mehernosh Khan
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