Robinson Township v. Commonwealth – Is Any of Act 13 Left?

by Buchanan Ingersoll & Rooney PC

The Pennsylvania Supreme Court struck four additional portions of Act 13 of 2012 in its much anticipated second decision  in the Robinson Twp. v. Com. litigation (Robinson IV) on September 28, 2016. While the decision and its tone are likely to disappoint industry observers, the operational impacts of the opinion are likely to be limited.

The Supreme Court had issued an earlier decision in December 2013 – Robinson II –in which it struck various Act 13 provisions including, among others, Sections 3304 (providing for zoning uniformity within the Commonwealth), and 3215(b) (creating setbacks from various water bodies as well as a process for waivers from those setbacks). A summary of the Robinson II decision may be found here. Robinson IV reviewed a July 2014 Commonwealth Court decision (Robinson III) issued on remand from the December 2013 Robinson II decision.

Robinson IV Summary of Holdings

By way of summary, the Supreme Court held:

  • Sections 3305-3309 (creating Public Utility Commission (PUC) and Commonwealth Court review of local ordinances, as well as consequences stemming therefrom) were not severable from Sections 3304 and 3303 (preempting and prohibiting certain local zoning authorities), which the Court had already found to be unconstitutional. Sections 3305 – 3309 were stricken, meaning that the PUC no longer has authority to review municipal zoning ordinances regulating oil and natural gas operations nor may oil and natural gas companies “fast track” their challenges to municipal regulations by filing with the Commonwealth Court as the court of first resort.
  • Sections 3222.1(b)(10) and (b)(11) (the so-called physician gag rule) did not violate the single subject rule of Article III, Section 3 of the Pennsylvania Constitution. However, those sections violated Article III, Section 32 of the Pennsylvania Constitution as “special laws” creating requirements which differed for the natural gas industry as compared to other industries without such difference having a substantial relationship to a legitimate legislative goal. Consequently, those provisions were stricken. Treating medical personnel cannot be required by statute to execute a confidentiality agreement in order to obtain trade secret or confidential and proprietary product information to be used in the course of diagnosis or treatment of a patient.
  • Section 3218.1 (relating to notice by the DEP of spills and releases to public water systems) violated Article III, Section 32 of the Pennsylvania Constitution’s prohibition on special laws by unjustifiably differentiating between public and private water supplies, as owners of private water supplies were not required to be notified by the DEP under the statute. The Court stayed the effect of this ruling for 180 days to allow the General Assembly time to “craft remedial legislation.”
  • Section 3241 (relating to powers of eminent domain) violated the Fifth Amendment of the U.S. Constitution and Article I, Section 10 of the Pennsylvania Constitution by permitting the taking of private property for a private purpose. The provision was also enjoined.

Operational Impacts

Operational impacts from Robinson IV are anticipated to be limited.  The only portion of the decision with the potential to immediately affect a natural gas company’s operations is the elimination of Section 3241’s eminent domain authority.  However, it appears the use of the provision has been limited, given other available mechanisms through the federal Natural Gas Act and for public utility corporations through the Pennsylvania Business Corporations Law.

The other stricken provisions appear to have no immediate impacts upon day-to-day operations.  The Chapter 33 provisions allowing for PUC and Commonwealth Court review of municipal ordinances were enjoined by the Commonwealth Court in July 2014 after being called into question by the December 2013 Robinson II Supreme Court decision.  Meanwhile, it is unclear if the so-called “gag rule” has ever been invoked.

The Supreme Court delayed the effect of its ruling striking Section 3281.1, which required the Pennsylvania Department of Environmental Protection (DEP”) to provide notice of spills and releases to public water systems but not to private water supply owners.  The Supreme Court’s decision assumes that the General Assembly will wish to enact legislation to “fix” the effect of its ruling, which leaves Act 13 without a provision requiring DEP notice to any water supply – public or private.  However, as other Pennsylvania statutes and regulations include various notification requirements (see, e.g., 25 Pa. Code § 91.33), the General Assembly may decline the Court’s invitation.

In addition to its apparent lack of operational impacts, Robinson IV is also notable for what it did not do – provide any further refinement or instruction upon the Supreme Court plurality’s discussions of Article I, Section 27 of the Pennsylvania Constitution (the Environmental Rights Amendment).  In the Robinson II decision, a plurality of the Supreme Court discussed the Environmental Rights Amendment and called for the abandonment of the existing three-prong test established in the Payne v. Kassab, 312 A.2d 86 (Pa. Commw. Ct. 1973) case.  Abandonment has been rejected by the Commonwealth Court reasoning that the Environmental Rights Amendment discussion contained in Robinson II was a plurality opinion, and Payne v. Kassab continues to be applied.  See Pa. Envtl. Def. Found. v. Com., 108 A.3d 140, 156, n. 37 (Pa. Commw. Ct. 2015).  In issuing its majority decision in Robinson IV, the Supreme Court declined to revisit the plurality’s opinion regarding the Environmental Rights Amendment other than for the purposes of providing procedural history.

What’s Left of Act 13?

Some observers may be left with the impression that little of Act 13 remains.  While it is true that the Supreme Court has found various key, substantive provisions to be unconstitutional, the bulk of Act 13 remains in effect following the Robinson IV decision.  The Supreme Court’s decisions in Robinson II and Robinson IV impacted selected provisions of Chapter 32 and the majority of Chapter 33.  The other chapters – 23, 25, 27, and 35 – have not been impacted by these decisions.  These chapters include provisions creating an Impact Fee upon natural gas operations (58 Pa. Con. Stat. § 2301 et seq.).  Additionally, while portions of Chapter 32 have been stricken, the majority of the chapter, which contains a codified overhaul of environmental and operational requirements, continues to be effective, including among other things, well permitting requirements (Section 3211), secondary containment obligations (Section 3218.2), and the imposition of an air inventory (Section 3227).

Perhaps more pressing for the natural gas industry is the impending oil and natural gas regulations to be located at 25 Pa. Code Chapter 78a.  Those regulations, which DEP has stated will be published as effective in the October 8, 2016 Pennsylvania Bulletin, include significant regulatory changes.  A separate update discussing deadlines and changes imposed by the new regulations is forthcoming.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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