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Yudichak applauds court ruling on Marcellus Shale zoning restriction

Published July 27. 2012 05:01PM

State Senator John Yudichak (D-Luzerne/Carbon/Monroe) released the following statement in response to Thursday's Commonwealth Court ruling that struck down Pennsylvania's attempt to establish statewide zoning for Marcellus Shale drilling.

"I applaud the Commonwealth Court for their decision which declared significant portions of the Republican driven Marcellus Shale legislation, Act 13, unconstitutional. As the Democratic chairman of the Senate Environmental Resources and Energy Committee, I argued from day one that the oil and gas industry should not get a "free pass" when it comes to local zoning and reasonable environmental setback requirements."

"Today, the court agreed and voided Act 13 provisions that tried to supersede local zoning laws and empowered the DEP secretary to waive setback requirements for gas wells. I want the oil and gas industry to prosper in Pennsylvania, but that prosperity must not come at the expense of our environment and the safety of local citizens."

Summary of theruling:

The 7 judge panel of Commonwealth Court ruled on a request for a declaratory judgment and an injunction regarding certain portions of the Marcellus Shale law, Act 13 of 2012. The request was filed in March as part of a 13 count lawsuit by 7 municipalities, 2 local officials, a medical doctor, the Delaware Riverkeeper Network and the Delaware Riverkeeper.

The Court found 2 provisions of Act 13 unconstitutional.

By a 4-3 decision, the Court found Section 3304 unconstitutional and permanently enjoined the Commonwealth from enforcing that section and related provisions of Chapter 33. Section 3304 required municipalities to amend their local zoning ordinances to allow for oil and gas well drilling and storage activities regardless of their local zoning ordinance. The Court held that requiring municipalities to change their zoning and land use planning provisions was a substantive due process violation of Article 1, Section 1 of the Pennsylvania Constitution and the 14th Amendment to the U.S. Constitution.

By a 7-0 decision, the Court found DEP's authority to waive the setback requirements established in section 3215(b) violates Pennsylvania Constitution Article 2, Section 1, which prohibits the delegation of legislative powers. Section 3215(b) establishes setback requirements for drilling activities from creeks, streams, springs, rivers, lakes and wetlands. Subsection (b) (4) allows DEP to waive the distance of those setbacks if the driller submitted "a plan identifying additional measures, facilities or practices to be employed…to protect the waters of this Commonwealth." The majority rejected the Commonwealth's arguments that the general provisions in other sections of Act 13 provided sufficient standards to guide DEP determining when to grant waivers. The Court noted that it's "holding does not preclude the General Assembly's ability to cure the defects by subsequent amendment that provides sufficient standards."

The Court rejected all of Petitioners other arguments regarding the constitutionality of particular provisions of Act 13.

The Majority Opinion was written by Judge Pellegrini and joined by Judges McGinley, Leadbetter and McCullough. Judge Brobson wrote the Dissenting Opinion which was joined by Judges Simpson and Covey.

Any party may file an appeal with the Pennsylvania Supreme Court within 30 days.s attachments is strictly prohibited. If you receive this message in error, please notify the sender immediately and delete the information without saving any copies.

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