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Full Opinion
Mr. Chief Justice Castille announces the Judgment of the Court. Mr. Chief Justice Castille delivers the Opinion of the Court with respect to Parts I, II, IV, V, and VT(A), (B), (D)-(G), in which Mr. Justice Baer, Madame Justice Todd, and Mr. Justice McCaffery join, and delivers an Opinion with respect to Parts III and VI(C), in which Madame Justice Todd and Mr. Justice McCaffery join.
In this matter, multiple issues of constitutional import arise in cross-appeals taken from the decision of the Commonwealth Court ruling upon expedited challenges to Act 13 of 2012, a statute amending the Pennsylvania Oil and Gas Act (âAct 13â).
The litigation implicates, among many other sources of law, a provision of this Commonwealthâs organic charter, specifically Section 27 of the Declaration of Rights in the Pennsylvania Constitution, which states:
The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvaniaâs public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.
Pa. Const, art. I, § 27 (the âEnvironmental Rights Amendmentâ). Following careful deliberation, this Court holds that several challenged provisions of Act 13 are unconstitutional, albeit the Court majority affirming the finding of unconstitutionality is not of one mind concerning the ground for decision. This Opinion, representing the views of this author, Madame Justice Todd, and Mr. Justice McCaffery, finds that several core provisions of Act 13 violate the Commonwealthâs duties as trustee of Pennsylvaniaâs public natural resources under the Environmental Rights Amendment; other challenges lack merit; and still further issues require additional examination in the Commonwealth Court. Mr. Justice Baer, in concurrence, concurs in the mandate, and joins the Majority Opinion in all parts except Parts III and VI(C); briefly stated, rather than grounding merits affirmance in the Environmental Rights Amendment, Justice Baer would find that the core constitutional infirmity sounds in substantive due process.
I. Background
Before the Court are the direct appeals of the Commonwealth, by (a) the Office of
The Mareellus Shale Formation has been a known natural gas reservoir (containing primarily methane) for more than 75 years.
In shale formations, organic matter in the soil generates gas molecules that absorb onto the matrix of the rock. Over time, tectonic and hydraulic stresses fracture the rock and natural gas (e.g., methane) migrates to fill the fractures or pockets. In the Mareellus Shale Formation, fractures in the rock and naturally-occurring gas pockets are insufficient in size and number to sustain consistent industrial production of natural gas. The industry uses two techniques that enhance recovery of natural gas from these âunconventionalâ gas wells: hydraulic fracturing or âfrack-ingâ (usually slick-water fracking) and horizontal drilling. Both techniques inevitably do violence to the landscape. Slick-water fracking involves pumping at high pressure into the rock formation a mixture of sand and freshwater treated with a gel
In February 2012, the Governor of Pennsylvania, Thomas W. Corbett, signed Act 13 into law. Act 13 repealed parts of the existing Pennsylvania Oil and Gas Act and added provisions re-codified into six new chapters in Title 58 of the Pennsylvania Consolidated Statutes. The new chapters of the Oil and Gas Act are:
â Chapter 23, which establishes a fee schedule for the unconventional gas well industry, and provides for the collection and distribution of these fees;
â Chapter 25, which provides for appropriation and allocation of funds from the Oil and Gas Lease Fund;
â Chapter 27, which creates a natural gas energy development program to fund public or private projects for converting vehicles to utilize natural gas fuel;
â Chapter 32, which describes the well permitting process and defines statewide limitations on oil and gas development;
â Chapter 33, which prohibits any local regulation of oil and gas operations, including via environmental legislation, and requires statewide uniformity among local zoning ordinances with respect to the development of oil and gas resources;
â Chapter 35, which provides that producers, rather than landowners, are responsible for payment of the unconventional gas well fees authorized under Chapter 23.
See 58 Pa.C.S. §§ 2301-3504. Chapter 23âs fee schedule became effective immediately upon Act 13 being signed into law, on February 14, 2012, while the remaining chapters were to take effect sixty days later, on April 16, 2012.
In March 2012, the citizens promptly filed a fourteen-count petition for review in the original jurisdiction of the Commonwealth Court, broadly requesting a declaration that Act 13 is unconstitutional, a permanent injunction prohibiting application of Act 13, and legal fees and costs of litigation.
On June 6, 2012, the parties argued the pending objections and motions for summary relief to an en banc panel of the Commonwealth Court. In July 2012, the Commonwealth Court sustained the Commonwealthâs preliminary objections to eight counts of the citizensâ petition for review; overruled objections to four counts of the petition for review and granted the citizensâ application for summary relief on these four counts; and denied the Commonwealthâs application for summary relief in its entirety. Accordingly, the en banc panel held Act 13 unconstitutional in part and enjoined application of: (1) Section 3215(b)(4) of Chapter 32, and (2) Section 3304 and any âremaining provisions of Chapter 33 that enforce [Section] 3304,â ie., Sections 3305 through 3309. Robinson Twp. v. Commonwealth, 52 A.3d 463, 494 (Pa.Cmwlth.2012).
The parties filed direct cross-appeals with this Court, which were later consolidated. At the partiesâ request, briefing and argument were expedited. The Public Utility Commission and its Chairman Robert F. Powelson, along with the Department of Environmental Protection and its then-Secretary Michael L. Krancer filed an appeal and appellantsâ brief on behalf of the Commonwealth (âAgenciesâ Brief (as appellants)â) separate from the appeal and brief of the Office of the Attorney General and then-Attorney General Linda L. Kelly herself (âOAGâs Brief (as appellant)â). The citizens respond to the separate Commonwealth appeals in a joint appelleesâ brief (âCitizensâ Brief (as appellees)â). In the cross-appeals, the citizens file one appellantsâ brief (âCitizensâ Brief (as cross-appellants)â), to which the Commonwealth responds in two separate briefs, ie., âAgenciesâ Brief (as cross-appellees),â âOAGâs Brief (as cross-appellee).â In the four cross-appeals before this Court, the parties raise a total of fourteen issues (twelve of which are distinct), which we have reordered for clarity.
II. Justiciability: Standing, Ripeness, Political Question
We begin by addressing the several questions of justiciability raised by the parties. See Rendell v. Pa. State Ethics Commân, 603 Pa. 292, 983 A.2d 708, 717 (2009) (standing, ripeness, and political question âgive body to the general notions
Parties may raise questions regarding standing, ripeness, and the political question doctrine by filing preliminary objections to a petition for review filed in the original jurisdiction of the Commonwealth Court, similar to those permitted in a civil action. See Pa.R.A.P. 1516(b) and note (Rule 1516(b) is patterned after Rule of Civil Procedure 1017(a) (Pleadings Allowed)). Upon review of a decision sustaining or overruling preliminary objections, âwe accept as true all well-pleaded material facts set forth in the [petition for review] and all inferences fairly deducible from those facts.â Thierfelder v. Wolfert, 617 Pa. 295, 52 A.3d 1251, 1253 (2012). We will affirm an order sustaining preliminary objections only if it is clear that the party filing the petition for review is not entitled to relief as a matter of law. See Stilp v. Commonwealth, 596 Pa. 62, 940 A.2d 1227, 1232 n. 9 (2007).
In contrast to the federal approach, notions of case or controversy and justiciability in Pennsylvania have no constitutional predicate, do not involve a courtâs jurisdiction, and are regarded instead as prudential concerns implicating courtsâ self-imposed limitations. See Fumo v. City of Philadelphia, 601 Pa. 322, 972 A.2d 487, 500 n. 5 (2009); Rendell, 983 A.2d at 717 & n. 9. Justiciability questions are issues of law, over which our standard of review is de novo and the scope of review is plenary. Council 13, 986 A.2d at 74 n. 10.
A. Standing and Ripeness
Generally, the doctrine of standing is an inquiry into whether the petitioner filing suit has demonstrated aggrievement, by establishing âa substantial, direct and immediate interest in the outcome of the litigation.â Fumo, 972 A.2d at 496. There is considerable overlap between the doctrines of standing and ripeness, especially where the contentions regarding lack of justiciability are focused on arguments that the interest asserted by the petitioner is speculative, not concrete, or would require the court to offer an advisory opinion. Rendell, 983 A.2d at 718. In this sense, a challenge that a petitionerâs interest in the outcome of the litigation is hypothetical may be pled either as determinative of standing or restyled as a ripeness concern although the allegations are essentially the same. Id. Standing and ripeness are distinct concepts insofar as ripeness also reflects the separate concern that relevant facts are not sufficiently developed to permit judicial resolution of the dispute. Pure questions of law, including those in the present cross-appeals, do not suffer generally from development defects and are particularly well suited for pre-en-forcement review. Id. at 718 n. 13.
The Commonwealth Court held that Brian Coppola and David M. Ball had standing as elected officials and âas individual landowners and residentsâ of their respective townships. According to the court, Coppola and Ball live in a residential district in which, contrary to the prior legal regime, Act 13 now permits oil and gas operations. The value of Coppolaâs and Ballâs existing homes, the panel stated, is affected negatively because the two can neither enjoy their properties as expected, nor guarantee to potential buyers the enjoyment of these properties without intrusion of burdensome industrial uses in their residential districts. Moreover, in their capacity as elected officials of their municipalities, the court concluded, Coppola and Ball both were aggrieved because, under provisions of Act 13, they would be ârequired to vote for zoning amendments they believe are unconstitutional.â Robinson Twp., 52 A.3d at 475-76.
According to the Commonwealth, local officials do not have any cognizable legal interest in their powers to make land use determinations and, therefore, Coppola and Ball suffered no harm from the General Assemblyâs decision to alter or remove those powers. OAGâs Brief (as appellant) at 22-26. While recognizing that distinct interests are implicated, the Commonwealth does not challenge the standing of Coppola and Ball as landowners and residents of townships whose zoning districts are affected by Act 13. See id. at 23 n.8. The citizens respond by subscribing to the Commonwealth Courtâs reasoning with respect to the standing of individual citizens to sue. Citizensâ Brief (as appellees) at 48-62.
As noted, on appeal to this Court, the Commonwealth does not offer any arguments regarding the interests in the outcome of this litigation of Coppola and Ball in their individual capacities as landowners and residents of townships located in areas atop the Marcellus Shale Formation. We have consistently held that we will not raise standing claims sua sponte. Rendell, 983 A.2d at 717-18. Moreover, because Coppola and Ball both have standing to sue as landowners and residents and they assert the same claims in both individual and official capacities, we need not address whether they have a separate interest as local elected officials sufficient to confer standing.
2. Robinson Township, Township of Nockamixon, Township of South Fay-ette, Peters Township, Township of Cecil, Mount Pleasant Township, Borough ofYardley
The Commonwealth Court also held that Robinson Township, Township of Nocka-mixon, Township of South Fayette, Peters Township, Township of Cecil, Mount Pleasant Township, and the Borough ofYardley had standing to sue because âAct 13 imposes substantial, direct and immediate obligations on them that affect their government^ functions.â In the alternative, the court noted that the municipalitiesâ claims were âinextricably boundâ with rights of property owners, who the Commonwealth conceded had standing to challenge the constitutionality of Act 13. Robinson Twp., 52 A.3d at 475. As a related matter, the Commonwealth Court also addressed the Commonwealthâs ripeness challenge to the municipalitiesâ claims. The court held that the constitutionality of
On appeal, the Commonwealth characterizes the harm claimed by the municipalities as illusory because local governments (political subdivisions) have no inherent legal interest in the power to make land use determinations within their boundaries, and because municipalities do not enjoy constitutional protections similar to those of citizens. OAGâs Brief (as appellant) at 24. The Commonwealth also asserts that the municipalitiesâ claims are unripe because they are based on what the Commonwealth says is âa wholly speculative parade of horriblesâ that the municipalities claim âmight occur in the future following implementation of Act 18.â According to the Commonwealth, the record does not establish that appellee municipalities will be required to modify their zoning ordinances or that they will fail to do so and thereby incur penalties.
The citizens respond that the municipalities have standing because Act 13 requires them to act in conflict with their functions, duties, and responsibilities under the Pennsylvania Constitution and other laws. For example, the citizens argue, existing ordinances that address land use in their municipalities were adopted pursuant to powers delegated to them by the General Assembly over a span of years, and provide a balance between citizensâ safety, their rights, and orderly community development. The citizens claim that Act 13 displaces existing zoning ordinances and land use interests, prohibits municipalities from discharging their duties to adopt effective legislation to protect the health, safety, and welfare of citizens and the public natural resources from industrial activity, and requires them, instead, to create new exceptions for the oil and gas industry that are inconsistent with long-established municipal land use plans. Moreover, the citizens argue that Act 13 places local government in the untenable position of having to choose between either violating certain constitutional obligations or violating Act 13âs newly-imposed requirements, which carries a risk of severe monetary penalties that most municipalities cannot afford. Municipalities, according to the citizens, are aggrieved because the effect upon their duty and interest in ensuring a healthy environment and a quality of life for their citizenry is direct, substantial, and immediate. Citizensâ Brief (as appellees) at 51-60 (citing, inter alia, Franklin Twp. v. Commonwealth, 500 Pa. 1, 452 A.2d 718, 720 (1982) (Opinion Announcing Judgment of Court)). We do not view this question to be close; we agree with the citizens and affirm the Commonwealth Courtâs decision with respect to the standing of the municipalities and the ripeness of their claims.
This Court has held that a political subdivision has a substantial, direct, and immediate interest in protecting the environ
The Franklin Township and Susquehanna County decisions are dispositive of the Commonwealthâs appeal with respect to the municipalitiesâ standing and to the ripeness of their claims. Contrary to the Commonwealthâs characterization, the municipalitiesâ claims are not rooted simply in an asserted narrow legal interest in retaining powers as against the Commonwealth government to make land use determinations relating to oil and gas production. Rather, the municipalities, much like Messrs. Coppola and Ball, maintain claims premised upon threatened fundamental changes to esthetic and environmental values, which implicate the political subdivisionsâ responsibilities to protect the quality of life of its citizens. The aggrievement alleged by the political subdivisions is not limited to vindication of individual citizensâ rights but extends to allegations that the challenged statute interferes with the subdivisionsâ constitutional duties respecting the environment and, therefore, its interests and functions as a governing entity. City of Philadelphia v. Commonwealth, 575 Pa. 542, 838 A.2d 566, 579 (2003) (citing Franklin Twp., supra) (city has standing to bring action premised on assertions that challenged statute affects its interests and functions as governing entity). We find that the municipalitiesâ interests are sufficiently substantial, direct, and immediate to confer standing. Furthermore, we also dismiss the Commonwealthâs ripeness claim, which is merely a restyling of the remoteness concern already addressed in our standing discussion. See Rendell, 983
3. Maya van Rossum and the Delaware Riverkeeper Network
With respect to Maya van Rossum and the Delaware Riverkeeper Network, the Commonwealth Court sustained the Commonwealthâs preliminary objections, and held that these parties failed to plead any direct and immediate interest or harm. According to the court, van Rossumâs concern over the negative effect of Act 13 on her personal use and enjoyment of the Delaware River Basin and her work as Executive Director of the Delaware Riv-erkeeper Network did not amount to a sufficient interest in the outcome of the litigation to confer standing. The Commonwealth Court further explained that, although an association like the Delaware Riverkeeper Network may have standing as a representative of its members who are suffering immediate or threatened injury, the group had ânot shown that at least one member has suffered or is threatened with sufferingâ the requisite type of injury. Robinson Twp., 52 A.3d at 476.
The Delaware Riverkeeper Network challenges the lower courtâs decision, asserting that its members are residents of areas whose existing protective zoning ordinances âwill be eviscerated by Act 13,â and that their interests in the values of their homes and businesses (e.g., an organic farm in the Delaware River watershed) are similar to those of Messrs. Coppola and Ball. The Delaware Riverkeeper Network also emphasizes the deleterious effects of industrial activities close to its membersâ homes, including effects on their health and their ability to enjoy natural beauty, environmental resources, and recreational activities in the Delaware River corridor, such as fishing, boating, swimming, and bird-watching. The Delaware Riverkeeper Network further explains that drilling guided by Act 13 will affect well water supply as well as the sensitive ecosystems of the Delaware River, from which the groupâs members derive sustenance and other benefits. Citizensâ Brief (as cross-appellants) at 61 (citing Friends of the Earth, Inc. v. Laidlaw Envtâl Servs. (TOC), Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) (â[Environmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity.â)). According to these citizens, esthetic and environmental well-being, âlike economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process.â Id. (emphasis omitted) (quoting Unified Sportsmen of Pa. v. Pa. Game Commân, 903 A.2d 117, 122-24 (Pa.Cmwlth.2006)) (citing Sierra Club v. C.B. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). Van Rossum, as Executive Director of the Delaware Riverkeeper Network, alleges similar concerns in the outcome of this litigation.
The Commonwealth responds that the Commonwealth Courtâs decision should be affirmed because any harm alleged by these particular parties is speculative and remote. The Commonwealth states that there are other parties better positioned to raise claims regarding Act 13âs validity and, therefore, this Court need not recognize that these parties have standing. OAGâs Brief (as cross-appellee) at 21-22; Agenciesâ Brief (as cross-appellees) at 21-22. Moreover, the Commonwealth notes that this Court âneed not address the
We agree with the citizens and reverse the decision of the Commonwealth Court with respect to the standing of the Delaware Riverkeeper Network and van Rossum, and with respect to the ripeness of their claims. The Commonwealth Courtâs finding that the Delaware River-keeper Network failed to show that any of its members were threatened with an injury sufficient to confer upon the group associational standing is not supported by the record. In response to preliminary objections, the citizens relied on of-record affidavits to show that individual members of the Delaware Riverkeeper Network are Pennsylvania residents and/or owners of property and business interests in municipalities and zoning districts that either already host or are likely to host active natural gas operations related to the Mar-cellus Shale Formation. See Citizensâ Consolidated Brief in Opposition to [the Commonwealthâs] Preliminary Objections, 5/14/2012, at 22-24. Like Messrs. Coppola and Ball (as to whom the Commonwealth conceded the standing issue), these members asserted that they are likely to suffer considerable harm with respect to the values of their existing homes and the enjoyment of their properties given the intrusion of industrial uses and the change in the character of their zoning districts effected by Act 13. See, e.g., id. at Exh. 15, 16 (affidavits of G. Swartz and T. Kowal-chuk). These individual members have a substantial and direct interest in the outcome of the litigation premised upon the serious risk of alteration in the physical nature of their respective political subdivisions and the components of their surrounding environment. This interest is not remote. See Franklin Twp., 452 A.2d at 720-22; Susquehanna County, 458 A.2d at 931; accord Friends of the Earth, Inc., supra, 528 U.S. at 183, 120 S.Ct. 693.
Under Pennsylvania law, an association has standing as representative of its members to bring a cause of action even in the absence of injury to itself, if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the action challenged. Pennsylvania Med. Socây v. Depât of Pub. Welfare, 614 Pa. 574, 39 A.3d 267, 278 (2012); accord South Whitehall Twp. Police Serv. v. South Whitehall Twp., 521 Pa. 82, 555 A.2d 793, (1989) (collective bargaining agent has standing to sue if members are aggrieved, even if action is not related solely to collective bargaining). Several members of the Delaware Riverkeeper Network have alleged sufficient injury to show that they are aggrieved by the enactment of Act 13. As these membersâ associational representative, the Delaware Riv-erkeeper Network has standing. Van Rossum, as the Executive Director of the Delaware Riverkeeper Network, is in a similar legal position and, as a result, has
h. Mehemosh Khan, M.D.
Finally, the Commonwealth Court held that Dr. Khan lacked standing to sue the Commonwealth in this matter because the interest he asserted was remote. The citizens appeal the Commonwealth Courtâs decision, explaining that Dr. Khan is a physician who treats patients in an area where drilling operations are taking place, and whose interest in the outcome of this litigation is sufficient to confer standing. The doctor claims that Act 13âs restrictions on obtaining and sharing information with other physicians regarding the chemicals used in drilling operations impede his ability to diagnose and treat his patients properly. See 58 Pa.C.S. § 3222.1(b)(10)-(11).
On appeal, Dr. Khan argues that the challenged provision prevents physicians from sharing diagnostic test results (e.g., blood test results), and a patientâs history of exposure, including the dose and duration of exposure â all of which are essential tools of treating patients and practicing medicine competently. Dr. Khan continues that the restrictions on sharing frack-ing chemicalsâ composition places medical professionals in a position to choose be
The Commonwealth generally subscribes to the Commonwealth Courtâs reasoning. Additionally, the Commonwealth claims that Dr. Khanâs interest is illusory because the restriction Act 13 places upon medical professionals allows the use of confidential information for the health needs of an individual patient, and Dr. Khan does not explain why, as a treating physician, he needs further disclosure for non-medical purposes. OAGâs Brief (as cross-appellee) at 22-24. Furthermore, the Commonwealth argues that Dr. Khanâs harm is speculative because it is based on the rights of his patients and on âserial âmightsââ which are unfounded. According to the Commonwealth, Section 3222.1(b) is not âa muzzleâ on the dissemination of information, but it actually requires disclosures of otherwise protected information. Agenciesâ Brief (as cross-ap-pellees) at 22-27.
We agree with the citizens that Dr. Khanâs interest in the outcome of litigation regarding the constitutionality of Section 3222.1(b) is neither remote nor speculative. Dr. Khan describes the untenable and objectionable position in which Act 13 places him: choosing between violating a Section 3222.1(b) confidentiality agreement and violating his legal and ethical obligations to treat a patient by accepted standards, or not taking a case and refusing a patient medical care. The Commonwealthâs attempt to redefine Dr. Khanâs interests and minimize the actual harm asserted is unpersuasive. Our existing jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between equally unappealing options and where the third option, here refusing to provide medical services to a patient, is equally undesirable. See, e.g., Cozen OâConnor v. City of Phila. Bd. of Ethics, 608 Pa. 570, 13 A.3d 464 (2011) (law firm has standing to test validity of Ethics Act provision in advance of undertaking potentially prohibited action where alternative is testing law by defying it and potentially damaging firmâs ethical standing and reputation; third option of maintaining client debt on books for decades equally unappealing); Shaulis v. Pa. State Ethics Commân, 574 Pa. 680, 833 A.2d 123 (2003) (attorney has standing to challenge statutory limitation on her practice of law in certain ven