A critical battle in the fight over hydraulic fracturing in Pennsylvania continues, and will now speed up, as both parties in Robinson Township v. Commonwealth have requested expedited review of the Commonwealth Court’s opinion. Robinson Township struck down a state law that limited localities’ ability to regulate oil drilling. The law in question, Act 13, was enacted in response to various municipalities’ attempts to thwart hydraulic fracturing through the use of zoning ordinances. Act 13 was an attempt to restore regulatory certainty to the energy exploration industry by providing a comprehensive and uniform scheme for oil and gas exploration. The municipalities asserted that the zoning ordinances were their prerogative due to their constitutional duty to protect the health and safety of their residents–never mind that much of the science surrounding fracking has debunked the claims underlying the hysteria.
Pennsylvania contains portions of the Marcellus Shale–which is poised to become the most productive natural gas field in the US–and other unconventional formations. Prior to the enactment of Act 13, the Pennsylvania Supreme Court had indicated that it was up to the legislature to clearly communicate its intent to restrict the municipalities’ land-use authority over areas where energy development was occurring. The legislature responded by enacting Act 13, which expressly preempts municipal zoning schemes that restrict oil and gas operations. Upon challenge, the court used a substantive due process inquiry to determine that the legislature’s Act was unconstitutional under the Pennsylvania constitution.
Given the amount at stake in terms of job creation, energy supply and domestic energy prices, along with the fear mongering over unconventional oil exploration that environmental activists have promulgated, it’s no wonder both sides have moved to accelerate the appeal.
As the Commonwealth’s brief states, “Until certainty, one way or the other, is established, the Commonwealth risks losing the chance to promote and grow a key economic driver to its fullest potential, perhaps irreparably so.”