Pennsylvania Supreme Court hears challenge to drilling laws

PHILADELPHIA — The Pennsylvania Supreme Court wrestled on Wednesday with how to scrutinize government actions that affect publicly owned natural resources and citizens’ environmental and property rights in two cases with roots in shale gas drilling but with potential repercussions for other forms of development.

During a dynamic morning session that lasted nearly three hours, the justices peppered attorneys on all sides with questions both sweeping and practical — such as whether the environmental rights described in the state constitution are fundamental rights and whether lawmakers have singled out the gas industry for special treatment.

One case, Pennsylvania Environmental Defense Foundation v. Commonwealth, concerns the state’s decision to lease publicly owned forestlands for gas development and use the money to balance budgets.

The other, Robinson Township v. Commonwealth, challenges several provisions in the state’s updated oil and gas law, including the validity of the state’s centralized method of reviewing municipal gas drilling ordinances and limitations on sharing information about gas development fluids that might affect drinking water or public health.

Six of the court’s seven justices heard oral arguments in the cases, including three who were presiding over their first days of arguments since being elected to the high court last year. Justice Michael Eakin, who was suspended in December, did not participate.

The justices seemed inclined to go back to the text of the state’s environmental rights amendment — Article 1, Section 27 of the constitution — to discern what should be expected of the government as the steward of Pennsylvania’s public natural resources. They did not give any clear sign of how they would define those standards.

In a surprising move, one of the Commonwealth’s attorneys Sean Concannon encouraged the court to do away with the current three-part harms and benefits balancing test that has for decades been the shorthand method for judging whether government actions comply with the state’s environmental rights amendment.

But he urged the court to adopt a reasonable replacement that will not stifle economic development or infringe on property rights.

“If we impose too strict a standard, it will have severe consequences on our economy, on our way of life,” he said.

John Childe, the attorney for the Pennsylvania Environmental Defense Foundation, argued that the money the state receives when it grants companies permission to tap gas beneath public lands is still a part of the public trust and should be used exclusively to conserve and maintain public natural resources.

Several justices appeared skeptical of such an all-or-nothing reading, with Justice Max Baer calling it “almost a frivolous argument” to say that the Legislature can’t touch any of the rents and royalties from state forest gas leases.

“You’re asking the court to make, in my view, political judgments, and to write a standard that is very, very difficult,” Chief Justice Thomas G. Saylor said.

The justices also picked apart the state’s drilling law, known as Act 13, to see if it unjustifiably treats the gas industry differently than other industries.

Only narrow issues remain in the Robinson Township case after the Supreme Court released its landmark 2013 decision tossing out the drilling law’s uniform statewide zoning provisions for gas operations.

Among the remaining issues is whether regulators can be required to notify public water suppliers but not private water well owners of drilling-related spills, a differentiation that seemed to concern several justices.

“It seems to me the state’s interest here is in protecting the drinking water,” Justice Debra McCloskey Todd said, adding later, “I’m having trouble with this public/​private distinction.”

Justice David Wecht used a more colorful description to characterize the law’s different treatment for different water users. He wondered whether, under Act 13’s distinction, rural water well owners might not know something is wrong with their drinking water until “either they or their animals grow three heads.”

“They’re left in the lurch here,” he said.

The justices did not give any indication of when they might rule in the cases.

Laura Legere:

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