Charles Elliott

Pa. Appeals Court Strikes Down Act 13 Natural Gas Drilling Law as Unconstitutional

In a 4-3 decision issued today in Robinson Township, et al. v. Commonwealth of Pennsylvania (284 MD 2012), the Commonwealth Court struck down as unconstitutional Pennsylvania's "Act 13", a law that provided that natural gas well drilling, waste pits and pipelines be allowed in every zoning district, including residential districts.  In its 54-page opinion, the Court stated: Because the changes required by [the law, at 58 Pa. C.S. §3304] do not serve the police power purpose of the local zoning ordinances, relating to consistent and compatible uses in the enumerated districts of a comprehensive zoning plan, any action by the local municipality required by the provisions of Act 13 would violate substantive due process as not in furtherance of its zoning police power. Consequently, the Commonwealth’s preliminary objections to Counts I, II and III are overruled.  

Because 58 Pa. C.S. §3304 requires all oil and gas operations in all zoning districts, including residential districts, as a matter of law, we hold that 58 Pa. C.S. §3304 violates substantive due process because it allows incompatible uses in zoning districts and does not protect the interests of neighboring property owners from harm, alters the character of the neighborhood, and makes irrational classifications. Accordingly we grant Petitioners’ Motion for Summary Relief, declare 58 Pa C.S. §3304 unconstitutional and null and void, and permanently enjoin the Commonwealth from enforcing it.

This decision may have impacts which go beyond natural gas drilling. In particular, other statutory provisions purport to require municipalities to allow timbering in every municipal zoning district. We'll offer some further thoughts on the implications of this decision in a future blog. In the meantime, those interested in reading the opinion can find it on the Pennsylvania Commonwealth Court's website here.

EPA Proposes Finding Northampton County PA Coal Power Plant Causes SO2 Air Pollution Violations in NJ

Portland Coal Power Plant

Portland Coal Power Plant

UPDATE

: On October 31, 2011 the EPA Issued its final response to the New Jersey Petition, finding that the coal-fired Portland Generating Station in Upper Mount Bethel Township, PA is emitting air pollutants in violation of the interstate transport provisions of the Clean Air Act. EPA found that the plant's SO2 emissions significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO2 national ambient air quality standard (NAAQS) in New Jersey. The EPA is establishing emission limitations and compliance schedules to ensure that the plant will eliminate its significant contribution to SO2 pollution in New Jersey. See

our post of November 4, 2011

.

The U.S. EPA is proposing to formally find that the coal-fired Portland Generating Station in Upper Mount Bethel Township, Northampton County, Pennsylvania, is causing interstate air pollution in violation of the federal Clean Air Act.  It also proposes to impose emission limitations to force substantial reductions of sulfur dioxide emissions from the plant.

In its "Response to Petition from New Jersey Regarding SO2 Emissions from the Portland Generating Station", EPA proposes to issue a finding that emissions of sulfur dioxide (SO2) from the Portland Plant significantly contribute to nonattainment and interfere with maintenance of the 1-hour SO2 national ambient air quality standard (NAAQS) in New Jersey. This finding is proposed in response to a petition submitted by the State of New Jersey Department of Environmental Protection (NJDEP) on September 17, 2010. EPA is also proposing emission limitations and compliance schedules to significantly reduce SO2 emissions from the plant.

According to the NJDEP petition and the proposed EPA finding,emissions from the Portland plant are causing SO2 concentrations far in excess of the NAAQS of 196 micrograms/m3.  EPA states that these violations require an

81 percent reduction

in emissions from the Portland plant to reduce SO2 concentrations below the NAAQS.

EPA will receive comments on this proposed finding, which must be received on or before May 27, 2011. Submit comments, identified by Docket ID No. EPA-HQ-OAR-2011-0081, online at 

http://www.regulations.gov

, by email to: a-and-r-docket@epa.gov. Attention Docket ID No. EPA-HQ-OAR-2011-0081, or mail to: EPA Docket Center, EPA West (Air Docket), Attention Docket ID No. EPA-HQ-OAR-2011-0081, U.S. Environmental Protection Agency, Mailcode: 2822T, 1200 Pennsylvania Avenue, NW., Washington, DC  20460.

A public hearing will be held on April 27, 2011, in the Pequest Trout Hatchery and Natural Resources Education Center located in Oxford, Warren County, New Jersey 07863.

Appeals Court Rejects Attempt to Void Zoning Hearings Due to Environmental Advisory Council Involvement

UPDATE: May 5, 2011  In an order issued today, the Pennsylvania Supreme Court denied HYK Construction Company, Inc.'s petition for allowance of appeal of the Commonwealth Court's ruling. 

In an important decision for Pennsylvania's Environmental Advisory Councils (EACs), Pennsylvania's Commonwealth Court rejected a developer's attempt to void conditional use zoning hearings before a Board of Supervisors due to the involvement of the Township's EAC .

The November 19, 2010 decision in HYK Construction Company v. Smithfield Township (2047 CD 2009), involved an application to construct and operate a concrete batch plant. The EAC participated in the hearings, along with some 75 neighbors and residents.  The developer objected to the EAC's involvement, claiming that it showed that the township was biased and had a conflict of interest. After the Supervisors denied the developer's objections and allowed the EAC to participate, the developer filed a lawsuit in the Court of Common Pleas against the Township and the EAC.  The lawsuit sought an injunction to disqualify the Supervisors, prevent the EAC from participating, and to order the matter heard by an independent hearing examiner.  The EAC and Township argued that there was no conflict in the EAC's role in the hearings and that the Common Pleas Court lacked jurisdiction to hear the case.  The Common Pleas Court held that it had jurisdiction and granted relief to the developer. 

On appeal, the Commonwealth Court reversed the lower court's decision and ordered the developer's lawsuit dismissed. The Commonwealth Court determined that the Court of Common Pleas lacked jurisdiction to hear the case. The Court decided that such claims of bias and conflict had to be raised as part of the zoning proceedings and could not be the subject of a separate lawsuit. In addition, it held that it was improper for the lower court to hear the case without including all of the other parties to the conditional use hearing, and in a "clear violation of the Appllants' due process rights",  the lower court had improperly conducted a private, off-the-record investigation to determine bias. With respect to the EAC involvement, the Court stated that: "While EAC is funded by the Township and was granted party status by the Board, EAC is a separate and distinct entity from the Board. The requisite walls of division are in place to overcome any appearance of impropriety."

Finally, the Court rebuked the developer for its attempt to avoid the ordinary hearing and review process of the Pennsylvania Municipalities Planning Code:  "We believe HYK's equity action represents an improper attempt to circumvent the mandatory statutory review process. To allow equity jurisdiction to usurp the power of the Board would create infinite challenges to interlocutory determinations and defeat or, at the very least, disrupt the Commonwealth's structure for review of zoning decisions by local boards and governing bodies. If the courts became involved every time a party makes an allegation of bias, the courts — rather than the Board — would be reviewing conditional use applications... [W]e can find no justification for the trial court's exercise of equity jurisdiction in this matter."

NOTE: Charles W. Elliott represented the Smithfield Township Environmental Advisory Council in this case.