What Remains of Act 13 in Pennsylvania after Robinson? Pennsylvania Commonwealth Court Strikes Further Provisions of Act 13 as Unconstitutional

by Wilson Elser

Earlier this year, we reported in our Client Alert dated January 15, 2014, on the Pennsylvania Supreme Court’s decision in Robinson v. Commonwealth of Pennsylvania, 83 A.3d 901 (Pa. 2013). In Robinson, the Supreme Court struck down as unconstitutional provisions of Act 13 that required municipalities to adopt uniform zoning requirements that could allow drilling in all zoning districts. In so ruling, the Robinson court found that the disputed provisions of Article 13 violated the Environmental Rights Amendment in that it removed from Pennsylvania’s municipalities the right to be stewards over natural resources within their own borders. By way of background, Act 13 repealed Pennsylvania’s Oil and Gas Act and replaced it with a new framework, which was challenged as unconstitutional. The Pennsylvania Supreme Court previously found in Robinson that the portion of Act 13 that required municipalities to adopt uniform zoning ordinances was unconstitutional.

The Supreme Court also remanded the case back to the Pennsylvania Commonwealth Court for further rulings on the constitutionality of provisions of Act 13:

  • Requiring notice to only public, but not private, drinking water systems when there is a spill
  • Conferring power of eminent domain to a corporation that transports, sells or stores natural gas
  • Prohibiting health professionals from disclosing to others the amount of hydraulic fracturing additives received from drilling companies
  • Authorizing the Public Utility Commission (PUC) to review local zoning ordinances and to withhold impact fees from local governments with ordinances that do not comply with Act 13.

Overview of the Commonwealth Court Decision
On July 17, 2014, a majority of the Pennsylvania Commonwealth Court issued a decision ruling on the constitutionality of these provisions, the details of which are summarized below.

Issue 1: Requiring notice only to public, but not to private, drinking water systems when there is a spill.
The Court found this provision of Act 13 constitutional. The basis for this ruling was that the Commonwealth of Pennsylvania has a “legitimate interest in protecting the public water supply by ensuring that any public drinking water facilities that could be affected by a spill or contamination are notified of the event and any expected impact on water quality.” Moreover, private water supplies are not regulated by the Department of Environmental Protection (DEP), and the distinction between private and public water supply “is a reasonable classification related to the legitimate state interest promoted” by Act 13.

Issue 2: Conferring power of eminent domain to a corporation that transports, sells or stores natural gas.
Concerning the issue of eminent domain, and Act 13 permitting a corporation to acquire property for a non-public purpose of “injecting, storing, and removing natural gas,” the Commonwealth Court found this provision constitutional. The Court ruled that this particular eminent domain power was limited to only those corporations “empowered to transport, sell or store natural gas in this Commonwealth….” The Court rejected additional arguments stating that Act 13 “only confers upon a public utility possessing a certificate of public convenience the power to condemn property for the injection, storage and removal of natural gas for later public use.”

Issue 3: Prohibiting health professionals from disclosing to others the amount of hydraulic fracturing additives received from drilling companies.
On the third issue, the Court stated that Act 13 requires that operators give to the DEP “completion reports,” which are filed with DEP within 30 days after a well is prepared for production of oil and gas, and uniformly requires “operators, service companies, or vendors” to “disclose chemical additives used to fracture unconventional wells to the public within 60 days of completion….” The Court further stated that while the Act refers to confidentiality agreements, “there is no indication in the statute that such agreement precludes a physician from … including such information in a patient’s records.” Therefore, nothing precluded doctors from considering such confidential information in the patient’s treatment or sharing such information with other medical providers, particularly because records cannot be released without a patient’s request. The Commonwealth Court rejected other arguments made on this subject.

Issue 4: Authorizing the PUC to review local zoning ordinances and to withhold impact fees from local governments with ordinances that don't comply with Act 13.
On this issue, the Court observed: "Apparently acceding to the oil and gas industry's claims that local ordinances tailored to local conditions were purportedly impeding their oil and gas development and that a uniform law was necessary, the General Assembly enacted Act 13, which contained a number of provisions requiring local governments to enact uniform zoning provisions and preempted them from enacting any other laws that dealt directly with oil and gas operations.” However, in view of the Supreme Court’s ruling “declaring all the substantive provisions [in Act 13] unconstitutional and unenforceable” the Commonwealth Court held that this “statutory scheme cannot be implemented.”

The Commonwealth Court noted that the drilling industry will now have to take their claims to the state's common pleas courts:

Local zoning matters will now be determined by the procedures set forth under the [Municipalities Planning Code] and challenges to local ordinances that carry out a municipality’s constitutional environmental obligations. Because challenges to those ordinances must be brought in common pleas court, it would further frustrate the purpose of the Act in having a uniform procedure.

Practice Pointer
The Commonwealth Court has left important sections of Act 13 intact by continuing to (1) limit confidential information for treatment of patients affected by spills and incidents as a result of the fracking industries and (2) require notification to the public about spills affecting public water supplies. In addition, preserving eminent domain powers for public utilities in limited instances helps businesses in this field. Striking down the PUCs’ powers to review local municipalities’ ordinances is entirely consistent with the Supreme Court’s decision in Robinson. The courts of common pleas may, consistent with this ruling, hear cases involving such municipal ordinances at the local level, before local judges.

In our view, the most immediate impact of the Commonwealth Court’s ruling is to eliminate the PUCs’ role in reviewing local ordinances, and if local ordinances did not comply, to deny impact fee money. Local zoning matters will be determined locally in a Court of Common Pleas. Therefore, one of the main goals of Act 13 for uniformity of zoning ordinances has been eliminated as unconstitutional.

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.

© Wilson Elser | Attorney Advertising

Written by:

Wilson Elser

Wilson Elser on:

Readers' Choice 2017
Reporters on Deadline

"My best business intelligence, in one easy email…"

Your first step to building a free, personalized, morning email brief covering pertinent authors and topics on JD Supra:
Sign up using*

Already signed up? Log in here

*By using the service, you signify your acceptance of JD Supra's Privacy Policy.
Custom Email Digest
Privacy Policy (Updated: October 8, 2015):

JD Supra provides users with access to its legal industry publishing services (the "Service") through its website (the "Website") as well as through other sources. Our policies with regard to data collection and use of personal information of users of the Service, regardless of the manner in which users access the Service, and visitors to the Website are set forth in this statement ("Policy"). By using the Service, you signify your acceptance of this Policy.

Information Collection and Use by JD Supra

JD Supra collects users' names, companies, titles, e-mail address and industry. JD Supra also tracks the pages that users visit, logs IP addresses and aggregates non-personally identifiable user data and browser type. This data is gathered using cookies and other technologies.

The information and data collected is used to authenticate users and to send notifications relating to the Service, including email alerts to which users have subscribed; to manage the Service and Website, to improve the Service and to customize the user's experience. This information is also provided to the authors of the content to give them insight into their readership and help them to improve their content, so that it is most useful for our users.

JD Supra does not sell, rent or otherwise provide your details to third parties, other than to the authors of the content on JD Supra.

If you prefer not to enable cookies, you may change your browser settings to disable cookies; however, please note that rejecting cookies while visiting the Website may result in certain parts of the Website not operating correctly or as efficiently as if cookies were allowed.

Email Choice/Opt-out

Users who opt in to receive emails may choose to no longer receive e-mail updates and newsletters by selecting the "opt-out of future email" option in the email they receive from JD Supra or in their JD Supra account management screen.


JD Supra takes reasonable precautions to insure that user information is kept private. We restrict access to user information to those individuals who reasonably need access to perform their job functions, such as our third party email service, customer service personnel and technical staff. However, please note that no method of transmitting or storing data is completely secure and we cannot guarantee the security of user information. Unauthorized entry or use, hardware or software failure, and other factors may compromise the security of user information at any time.

If you have reason to believe that your interaction with us is no longer secure, you must immediately notify us of the problem by contacting us at info@jdsupra.com. In the unlikely event that we believe that the security of your user information in our possession or control may have been compromised, we may seek to notify you of that development and, if so, will endeavor to do so as promptly as practicable under the circumstances.

Sharing and Disclosure of Information JD Supra Collects

Except as otherwise described in this privacy statement, JD Supra will not disclose personal information to any third party unless we believe that disclosure is necessary to: (1) comply with applicable laws; (2) respond to governmental inquiries or requests; (3) comply with valid legal process; (4) protect the rights, privacy, safety or property of JD Supra, users of the Service, Website visitors or the public; (5) permit us to pursue available remedies or limit the damages that we may sustain; and (6) enforce our Terms & Conditions of Use.

In the event there is a change in the corporate structure of JD Supra such as, but not limited to, merger, consolidation, sale, liquidation or transfer of substantial assets, JD Supra may, in its sole discretion, transfer, sell or assign information collected on and through the Service to one or more affiliated or unaffiliated third parties.

Links to Other Websites

This Website and the Service may contain links to other websites. The operator of such other websites may collect information about you, including through cookies or other technologies. If you are using the Service through the Website and link to another site, you will leave the Website and this Policy will not apply to your use of and activity on those other sites. We encourage you to read the legal notices posted on those sites, including their privacy policies. We shall have no responsibility or liability for your visitation to, and the data collection and use practices of, such other sites. This Policy applies solely to the information collected in connection with your use of this Website and does not apply to any practices conducted offline or in connection with any other websites.

Changes in Our Privacy Policy

We reserve the right to change this Policy at any time. Please refer to the date at the top of this page to determine when this Policy was last revised. Any changes to our privacy policy will become effective upon posting of the revised policy on the Website. By continuing to use the Service or Website following such changes, you will be deemed to have agreed to such changes. If you do not agree with the terms of this Policy, as it may be amended from time to time, in whole or part, please do not continue using the Service or the Website.

Contacting JD Supra

If you have any questions about this privacy statement, the practices of this site, your dealings with this Web site, or if you would like to change any of the information you have provided to us, please contact us at: info@jdsupra.com.

- hide
*With LinkedIn, you don't need to create a separate login to manage your free JD Supra account, and we can make suggestions based on your needs and interests. We will not post anything on LinkedIn in your name. Or, sign up using your email address.