Wednesday, October 17, 2012
The word is in: In Gov. Tom Corbett’s Pennsylvania, the state has the right to turn residential areas into industrial zones. And your town can’t do anything about it.
That’s so at least according to attorney Matthew H. Haverstick, who represented the Public Utility Commission and the Department of Environmental Protection at this morning’s oral arguments about Act 13 before the Supreme Court of Pennsylvania.
Earlier this year, in the midst of a shale-gas boom, the Republican-controlled state legislature passed, and Corbett signed, Act 13. Among other things, the law says that municipalities can’t use zoning laws to keep companies from siting drilling rigs, toxic retention ponds and compressor stations near homes, schools and hospitals.
The law appeared to place Republicans, usually reliable supporters of local autonomy, firmly on the side of state-level control for the benefit of the oil-and-gas industry.
Act 13 was challenged by seven municipalities — including Robinson Township, South Fayette, Peters, Cecil and Mount Pleasant — and an environmental group. In July, Commonwealth Court struck down the law’s statewide zoning provisions as unconstitutional. Commonwealth Court also struck down a provision mandating that DEP grant waivers to state rules requiring that drilling operations be set back from waterways.
The case is a complicated one, as evidenced by some 400 pages of briefs, plus 18 friend-of-the-court briefs, that sat by each of the six justices. The oral arguments lasted two hours.
In one of the morning’s more interesting exchanges, two justices, Seamus McCafferty and Max Baer, questioned attorney Haverstick about how far the state’s power to override zoning might go.
McCafferty asked whether Haverstick’s argument “means residential communities can be turned into industrial areas.”
Some observers laughed as Haverstick appeared to evade the question. But finally he admitted that yes, that was the case. “But that’s a policy choice the General Assembly made,” Haverstick said. “It’s not [the role] of this court to criticize the policies the General Assembly made.”
“What about the constitutional right of the citizenry of this state [to] the quiet enjoyment of their properties?” asked McCafferty.
Haverstick continued to make the argument that if the municipalities have a beef, it isn’t constitutional; rather, it’s with legislators’ policy-making. “The General Assembly already did this balancing test” between the rights of landowners who lease to drillers and those who live next door, he said.
Following up, Justice Max Baer asked whether the General Assembly could simply eliminate zoning in Pennsylvania entirely.
“There are plenty of parts of Pennsylvania that have no zoning whatsoever,” answered Haverstick, again appearing to not quite answer the question. Then he re-emphasized that the point is whether Act 13 can be applied constitutionally. The Act, he said “gives a property owner … greater rights to [use] his property the way he wants. It moves the needle closer to where our constitution wants it to be.”
Are there no constraints at all on the state overriding municipal law? Baer asked.
No, answered Haverstick — as long as the “regulation [is] rationally related to legitimate state interests.” And in this case, the “legitimate state interest” is gas extraction.
Haverstick argued that in overturning Act 13, Commonwealth Court pulled a “constitutional right” to zoning “out of thin air.”
“There is no consitutional right to be free of incompatible uses,” he said. He noted precedents in the state’s siting of a casino (in Philadelphia) and a prison in areas not zoned for it.
The question was later also addressed, somewhat less than reassuringly, by Haverstick’s co-counsel, Howard G. Hopkirk, of the state Attorney General’s office. Hopkirk said that yes, legislators could repeal all municipal zoning, but “they would have to have a rational basis to do that,” and there isn’t one.
Attorneys for the municipalities, meanwhile, argued that the state’s one-size-fits-all no-zoning rule for the gas industry was itself unconstitutional. Attorney John Smith said the state can’t force municipalities to behave in ways contrary to the state constitution’s mandate to protect the “health, safety and welfare” of the citizens. “This is why we do not have industrial uses in residential areas,” he said.
Attorneys for the municipalities also argued that Act 13 violates Pennsylvania’s 130-some-year-old ban on “special laws” that benefit specific private parties. In this case, Smith argued, Act 13 aids the oil-and-gas industry but not other industries its class, such as coal-mining or limestone quarrying.
He also cited Act 13’s notorious gag order against physicians, who would have to sign a nondisclosure rule simply in order to learn what chemicals used in drilling their patients might have been exposed to.
Haverstick countered that special laws are those that apply to a single individual or company, while Act 13 does apply to a class — oil-and-gas companies.
Across the state and the country, faulty seals have permitted methane to migrate from drilling operations into ground water. Landowners and other critics say toxic chemicals used in fracking have also contaminated wells and sickened animals and people. drilling operations have heavily polluted air in places like Wyoming and Texas. Trucks damage roadways. And pipelines have fractured wildlife habitats, from farmland to state forests.
Such concerns were shared by courtroom observers like Elizabeth Donohue, of Forest Hills.
“I’m just so worried about the effect this is going to have on the water and the air … we can’t separate [them],” said Donohue, who works on small local farms. “In order to be able to do the farming, I need clean air, clean water and clean soil, and all of that’s completely at risk with this industrial process.
“There’s no security.”
The court is not likely to rule on the case for months.
Due to the departure of Joan Orie Melvin (who’s facing corruption charges), the court is split evenly along party lines. A 3-3 vote would uphold the lower court’s ruling striking down Act 13.
Based on the questioning, Baer and McCafferty seem likely to vote to uphold that ruling. If that scenario plays out, just one more vote from among the remaining four justices would let municipalities continue to zone as they please on gas drilling.