In February 2012, Pennsylvania adopted comprehensive revisions to its Oil and Gas Act known as “Act 13.”  Among the changes was an expanded preemption of local regulation of oil and gas activities. Prior law prohibited municipalities from regulating “how” oil and gas development would proceed, but permitted zoning control over “where” development could occur. Act 13 imposed a uniform set of rules for local ordinances governing oil and gas. It also provided that the Public Utility Commission would decide in the first instance whether a local ordinance complied. Municipalities with non-complying ordinances would not share in fees paid by natural gas developers.

In December 2013, the Supreme Court invalidates that super-preemption as a violation of the Environmental Rights Amendment to the Pennsylvania Constitution. Robinson Twp. v. Pa. Pub. Util. Comm’n, 83 A.3d 901 (Pa. 2013).  That left open the question whether the PUC would continue to have the power to review ordinances.

Today, the Commonwealth Court on remand held that the PUC review provisions were inextricably bound up with the unconstitutional preemption provisions, and so were not severable. They are invalid as well.

This leaves us back at “where-not-how” preemption and conventional judicial review of local ordinances in court. While the PUC could opine on ordinances before they were enforced or even enacted, judicial review requires final action in most cases.

The Commonwealth Court’s opinions are here.