Much ink has been spilled writing about what the Pennsylvania Supreme Court did and said in the Robinson Township v. Commonwealth, No. 63 MAP 2012 (Pa. Dec. 19, 2013), decision, but not enough about what it means. Some observers and politicians have issued statements canonizing the decision as being the greatest ring for freedom since the fall of the Berlin Wall. Those statements have been opportunistic, political and self-serving. But who are the real winners and losers? Truth be told, there are but a handful of winners and a boatload of losers. The winners are the handful of current elected officials of the well-heeled townships on the left side of the caption. The losers are almost everyone else of all stripes.
Before we peel the onion and look at who the losers are, let's be clear: This decision will not be, as some misguidedly hope, the death knell of the oil and gas industry in Pennsylvania. Production has soared in the last few years, and most municipalities and citizens embrace the activity. The energy renaissance will continue.
Let's also be clear that it is the plurality opinion written by Chief Justice Ronald D. Castille that generates all of the discussion and attention. Three justices, not a majority, came down on Environmental Rights Amendment (ERA) grounds. That makes the opinion of questionable precedential value and predictions difficult.
The list of losers starts with the other municipalities who were not on the caption; most of which are not as well-heeled. All of them are now subject to being sued by interest groups claiming that they are not doing enough to "protect the environment"—as those interest groups would define that term. Likewise, municipalities that currently have no zoning at all may be sued to force enactment and enforcement of zoning codes, especially codes that sound more like Department of Environmental Protection (DEP) regulations than zoning codes.
Conservationists, environmentalists and nongovernmental organizations are losers. The court, in its zeal to banish the act of the legislative and executive branches, wiped away many important environmental protections provided by Act 13, such as setbacks. In communities with no zoning, those Act 13 setbacks were the only legally solid buffers the law provided.
The governor has acted to try to repair that mischief with his "call" to the industry to observe the buffers. That is helpful, but not as helpful as enacted law. The argument that the court's decision did not wipe out the buffers and setbacks because the DEP has the power and duty through permitting to do that anyway is a red herring, and perversely ironic to boot. A statute, like Act 13 did, sets a rock-solid, statewide standard that everyone must adhere and which the DEP does not have to re-prove every time it issues a permit. A permit condition has no such imprimatur. The irony is that the argument posits that the executive branch can do what those cheering the Supreme Court say the legislature working in tandem with the executive cannot: establish buffers.
The oil and gas industry are losers. This industry provides jobs to Pennsylvanians and hope to the nation for achieving true energy security. The Marcellus Shale Coalition (MSC) said the decision should serve as a reminder to policymakers of Pennsylvania's business climate challenges and that we need to work together toward common-sense proposals that encourage—rather than discourage—investment into the state. The MSC reminded us that the recent survey by the Fraser Institute, an independent public policy think tank, found that Pennsylvania's regulatory and tax climate are deterrents to attracting oil and gas investments. Its judicial climate can now be considered as a third deterrent.
More broadly, all Pennsylvanians who want jobs and those who would invest to provide them are losers. This decision has implications that go well beyond the oil and gas industry. In fact, it may very well have a more adverse impact on other businesses. Some will argue that any business activity involves adverse environmental impact and is thus contrary to the strictures of the ERA. The line will likely not be drawn that radically, but who knows what the lower courts will do. We also now have 2,500 municipal mini-DEPs for employers and potential employers to deal with. In the meantime, new business and existing business expansions will be stifled if for no other reason than the uncertainty that the decision has created. And along the lines of the Fraser Institute report, which focuses on oil and gas investment only, the nonpartisan Tax Foundation just ranked Pennsylvania as a lethargic 24th in overall state business tax climate.
The people of Pennsylvania as a body politic and our democratic process are losers. Justice Thomas Saylor points this out in his dissent. The plurality opinions have gutted the authority of the people—through the democratic process—to balance the various interests and potentially conflicting policy choices. The people and their elected legislative representatives are losers in yet another way. The court seems to have reversed the time-honored judicial presumption in favor of severability. That presumption says that when a court does strike down a provision of the law as unconstitutional, the remainder of the law should remain intact. This is really a double whammy since the parts of the law that the court should have severed were environmental protections.
Recipients of impact fee funds, which have amounted to more than $400 million in just the last two years, could be losers. The court's decision puts the fate of Act 13's impact fee in jeopardy as the issue of the severability of that portion of Act 13 has been remanded to the Commonwealth Court. Our five-county Greater Philadelphia region netted $3.3 million in impact fee funding in 2012. The court's decision puts the fate of Act 13's impact fee in jeopardy. Impact fee benefactors are, among others, counties, townships, conservation districts, the Fish and Boat Commission, Pennsylvania Emergency Management Agency, the State Fire Commissioner, the Housing Affordability and Rehabilitation Enhancement Fund, the Commonwealth Financing Authority, the Environmental Stewardship Fund and the Highway Bridge Improvement Fund, among others. These funds have been used for countless environmental and recreational purposes. Given the Supreme Court's inhospitable treatment of the presumption of severability already in this case, one can only wonder what the Commonwealth Court might do with the impact fee.
So what is the upshot of the roster of winners and losers? One would think that all the losers would be coalescing to craft a legislative solution. Despite the early inside whispers that any legislative action in response is a "no way, no how," with this many diverse stakeholders as losers, there is a powerful political gravity that may render that denial mode unsustainable. Coalescing and mobilizing all the parties whose ox has been gored, especially where some might not fully realize yet that their ox is bleeding, will be a challenge. Even if that can happen, the question becomes: What is the remedy? That is a hard question to answer. One possibility, which addresses the overarching problems these decisions leave, is a move to amend the Municipalities Planning Code to provide for all zoning to be done on a county level. That would provide peace of mind to hundreds of townships.
The court itself has a unique opportunity to correct the imbalance and remedy ill effects. The pending motion for reconsideration is probably a dead letter, but the case will be back after the Commonwealth Court deals with the remand. When the case returns, the court's composition will be different in important ways. Castille will be off the court due to mandatory retirement. Also, it's possible that Justice Correale Stevens, who did not participate, may participate then.
The exclusive circle of winners who laud over victory today should keep two things in mind. First, watch out what you wish for. Second, all glory is fleeting.
"Robinson Township Decision: A Few Winners and Lots of Losers," by Michael L. Krancer and Margaret Anne Hill was published in the January 17, 2014 edition of The Legal Intelligencer. To view the article online, please click here or visit www.thelegalintelligencer.com. Reprinted with permission from The Legal Intelligencer.