If you teach or practice in local government law, property, state constitutional law, or environmental law, I commend to your attention the Pennsylvania Supreme Court’s decision in Robinson Township v. Pennsylvania, which invalidated the state law – “Act 13” – that controversially sought to facilitate hydraulic fracturing, or “fracking,” for natural gas throughout the state. Act 13 preempted much, if not all, of local control over land use with respect to fracking, and even made local governments liable for money damages if they obstructed the fracking permitting process.
The Pennsylvania supreme court released its opinion on Dec. 19, 2013, which allowed the decision to get lost in the holiday news abyss. The majority and concurring opinions adopt novel, pathbreaking, and potentially destabilizing rationales, which I summarize below the bump.
In a majority opinion written by Chief Justice Castille, the majority held that Act 13 conflicted irreconcilably with the Environmental Rights Amendment (ERA) to the Pennsylvania Constitution. In other states with environmental clauses in their constitutions, the courts have generally shied away from reading them as more than hortatory. Alternatively, courts have interpreted them as merely imploring the legislature to protect the environment, while leaving it to the legislature to decide whether to act. Robinson Twp. breathes new life into the judicial enforceability of at least one state’s ERA and, within Pennsylvania, the enterprise of independent state constitutional interpretation more generally. Notable in the majority decision is the detailed discussion of Pennsylvania’s unique history of environmental degradation, and the importance of this history to the court’s interpretation of the ERA. In this sense, the court enthusiastically embraces an organic approach to state constitutional interpretation like that championed by A.E. Dick Howard (and famously criticized by James Gardner).
The court interprets the ERA as constitutionalizing the “public trust” doctrine. Applying this potentially capacious, but largely ill-defined doctrine, the court finds that Act 13 forces local governments to violate their obligations under the doctrine. In so holding, the court essentially constitutionalizes the pre-Act 13 level of environmental protection offered by local zoning codes. Act 13, the court says, is unconstitutional because it “alters existing expectations of communities and property owners and substantially diminishes natural and esthetic values of the local environment.” By recognizing a reliance interest in local zoning, albeit through the roundabout doctrinal means of the public trust doctrine as constitutionalized by the ERA, the opinion enters uncharted territory. Aside from the thorny doctrine of “vested rights,” zoning laws are usually seen as a matter of legislative grace; a property owner has no legally recognized reliance interest in zoning’s status quo. Further, the majority faults Act 13 for “marginalizing participation by residents, business owners and their elected representatives with environmental and habitability concerns,” seemingly embracing a constitutionally protected role for local participation in environmental decisions.
If the majority’s embrace of a right to local zoning through the ERA is a significant doctrinal development, Justice Baer’s concurrence proposes a constitutional earthquake. Rather than rely on the ERA, Justice Baer would have held that Act 13 violated the “substantive due process” rights (under both the federal and state constitutions) of property owners to have their municipalities enforce zoning codes that protect them from harmful uses of neighboring property. For Justice Baer, “once a state authorizes political subdivisions to zone for the ‘best interests of health, safety and character of their communities,’ . . . and zoning ordinances are enacted and relied upon by the residents of a community, the state may not alter or invalidate those ordinances, given their constitutional underpinning.” Local zoning ordinances are thus a one-way ratchet constitutionally; once enacted, a state, which traditionally exercises power over its political subdivisions as a matter of federal constitutional law (see Hunter v. City of Pittsburgh (U.S. 1907)), may not rescind or alter them. Perhaps in the fracking context, the implications of Justice Baer’s reasoning are appealing, but the same reasoning would seemingly “protect” property owners from state-mandated increases in density or affordable housing.
There are other fascinating tidbits in the opinion, including the court’s treatment of the municipalities’ standing claims and the discussion of special legislation. Look for more academic treatment of this case in the future in both law review articles and casebooks.