By Patiot-News Editorial Board. This article was first published on The Patriot News.
Thursday’s state Supreme Court ruling in the Act 13 case was a historic victory for protecting Pennsylvania’s environment.
In stirring language that reminded Pennsylvanians of past abuses committed by King Coal and loggers who clear-cut huge swaths of the state, the court ruled that the Legislature and Gov. Tom Corbett went so far overboard in handing out favors to an environmentally damaging industry that it violated the Pennsylvania Constitution.
It was the first time the court invoked the state constitution’s Environmental Rights Amendment to restrain what the Legislature and governor may do.
Act 13 presumed to dictate one-size-fits-all zoning rules for the oil and gas industry in every local government in every part of the state. It aimed to force municipalities to allow drilling in every type of zoning category, even residential areas.
Never mind your local knowledge and concerns, the Legislature and governor told communities across the state, we know best – like it or not, drilling is coming your way and we here in Harrisburg will tell you where it can go.
Fortunately, the Pennsylvania Constitution doesn’t give them the power to do that.
Act 13, the court said, unconstitutionally overrides a municipality’s responsibility to protect neighbors and the environment from the fallout imposed by heavy industrial operations.
The court also ruled the Legislature and Corbett gave the oil and gas industry too much room to avoid development setback rules that protect the commonwealth’s waterways.
On both points, the 4-2 ruling by the justices upheld last year’s Commonwealth Court decision to strike down those parts of Act 13.
Thursday’s ruling went further and revived a doctor’s challenge to the notorious “gag rule” in Act 13. It prevents doctors from talking freely about cases in which patients might have fallen ill from exposure to chemicals used in drilling, on the theory that the identity of many such chemicals is a trade secret. The court also made it clear that townships can sue on behalf of residents in environmental cases such as this.
The core of Thursday’s ruling could provide a powerful new legal check on environmental abuses, or it could fizzle into insignificance.
Only three justices invoked the state constitution’s Environmental Rights Amendment to decide the case. The fourth and decisive vote came from Justice Max Baer, who used different reasoning to reach the same decision.
For that reason alone, its value as precedent in future environmental cases might be limited. Also, Chief Justice Ron Castille, the Republican justice who wrote the plurality opinion, leaves the court next year, when he hits mandatory retirement age. Corbett and the Republican Legislature will surely be looking for a more industry-friendly replacement. Recently appointed Republican Justice Correale Stevens had no role in the case.
It’s curious how little legal power Pennsylvania’s Environmental Rights Amendment has exerted since it was passed in the early 1970s.
The amendment was overwhelmingly popular at the time. It cleared the Legislature twice without a dissenting vote and won statewide voter approval by a 4-to-1 ratio.
It is part of the state constitution’s bill of rights – making it a fundamental legal protection. Only two other states give their residents such a potentially strong constitutional shield against environmental abuses.
But courts generally hesitate to override the legislative branch and impose their judgment on questions of environmental policy. In this case, Act 13’s heavy-handed pre-emption of local laws for a single, powerful industry was so brazen, the Supreme Court felt bound to step in.
In the end, the Act 13 decision might be just a one-off ruling, the high-water mark for judicial protection of the environment against legislative excesses.
But the hope here is that it marks a new day in Pennsylvania, delivering an enduring reminder to legislators and the governor:
As you’re being schmoozed by lobbyists and lavished with campaign contributions from powerful industries that want special treatment, there’s a limit on how far you can go to please them, because the Pennsylvania Constitution has an Environmental Rights Amendment.