On March 2, 2020, the Pennsylvania Commonwealth Court ruled that a municipality was allowed to proceed with challenging the validity of certain environmental state statutes under Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment (ERA). Pa. Dept. of Envtl. Prot. v. Grant Twp., No. 126 M.D. 2017 (Pa. Cmwlth. Mar. 2, 2020). The question addressed, whether and if so the extent to which the validity of Pennsylvania’s environmental statutes can be challenged under the ERA, was one left open by the Pennsylvania Supreme Court in Pa. Envtl. Defense Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017).

In 2014, Grant Township attempted to pass an ordinance prohibiting the disposal of waste from oil and gas extraction within the Township. In 2015, however, a federal court struck down the ordinance as a violation of the Second Class Township Code and as being unlawfully exclusionary. In response, the Township adopted a Home Rule Charter which prohibited oil and gas waste fluid injection wells and precluded the application of any state laws pertaining to the disposal of waste from oil and gas extraction where those state laws conflict with the Home Rule Charter. In 2017, the Pennsylvania Department of Environmental Protection (DEP) issued a well permit which allowed an oil and gas company to convert an existing natural gas well into an underground injection well for the disposal of brine and other oil and gas wastes. At the same time, DEP filed a Petition for Review before the Commonwealth Court seeking declaratory relief that state laws such as the Oil and Gas Act and the Solid Waste Management Act preempt the Home Rule Charter’s prohibition on oil and gas waste fluid injection wells.

The Township filed Counterclaims to the Petition for Review, and in response to DEP’s Preliminary Objections, the Court allowed two of those Counterclaims to proceed. In those Counterclaims, the Township argued that: (1) the Home Rule Charter provisions were enacted pursuant to the ERA and therefore were a valid exercise of the Township’s constitutional rights which cannot be preempted by state statute, and (2) DEP has violated its duties as a public trustee under the ERA and violated the ERA by attempting to prevent the people of the Township from protecting their rights under the ERA. DEP then filed an Application for Summary Relief seeking to dismiss the two remaining Counterclaims. DEP argued that the Township failed to avail itself of a statutory remedy under the Municipalities Planning Code by failing to adopt local zoning ordinances.

In denying DEP’s Application for Summary Relief, the Court initially noted that DEP had already raised in its Preliminary Objections an argument that the Township failed to avail itself of a statutory remedy, although that argument was based on the Township’s failure to appeal the previously issued well permit. Noting similarities in the arguments, the Court found that because all preliminary objections are to be raised at one time, DEP’s argument is tantamount to raising serial objections, which is prohibited.

The Court ultimately held that “the Township seeks to prove that hydrofracking and disposal of its waste is so dangerous to the environment as to be in violation of the ERA, and thus that the statutes upon which DEP bases its preemption claims are constitutionally invalid. While the Township may or may not be able to prevail on its constitutional claims, this Court has already ruled that it may attempt to do so in defense of DEP’s lawsuit, and this application for summary relief is nothing more than a collateral attack on that decision.”

The stage is now set for Grant Township to put on evidence before the Commonwealth Court acting in its original jurisdiction. The Court will then have an opportunity to provide a legal framework for challenges to state statutes under the Environmental Rights Amendment.