Last week, the Commonwealth Court decided that municipalities lack the authority to regulate in the areas of environmental protection reserved to the Pennsylvania Department of Environmental Protection. Frederick v. Allegheny Twp. Zoning Hearing Bd., No. 2295 C.D. 2015 (Oct. 26, 2018).  In this latest judicial decision addressing Article I, Section 27 of the Pennsylvania Constitution (the “Environmental Rights Amendment”), the Court upheld a zoning ordinance that makes oil and gas development a permitted use by right in all zoning districts, including residential and agricultural districts, subject to certain standards related to road safety; the clearing of brush and trees; emergency planning; dust, noise and lighting controls; and security measures.

The Environmental Rights Amendment provides the Commonwealth’s citizens with “a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” The Court found that, “as a creature of statute, the Township can exercise only those powers that have been expressly conferred upon it by the General Assembly.” To that end, the Court stated that zoning necessarily requires municipalities to account for the natural, scenic, historic and esthetic values of the environment. But as to the remaining environmental issues covered by the Environmental Rights Amendment – i.e., clean air and pure water – the Court found that “[m]unicipalities lack the power to replicate the environmental oversight that the General Assembly has conferred upon DEP and other state agencies.” The Court noted that, specifically in this case, the Oil and Gas Act prohibits municipalities from regulating how gas wells operate. Ultimately, the Court held that, “a municipality may use its zoning powers only to regulate where mineral extraction takes place,” but a “municipality does not regulate how the gas drilling will be done.”

The Court held that the appellants failed to prove that the zoning ordinance unreasonably impairs their rights under the Environmental Rights Amendment, and failed to prove that it does not reasonably account for the natural, scenic, historic and esthetic values of the municipality’s environment.

In a dissenting opinion, Judge McCullough advocated for courts to apply strict scrutiny “in the same manner courts apply to other fundamental rights.” Judge McCullough would have therefore placed the burden on the municipality to prove that the zoning ordinance “is narrowly tailored to effectuate its economic interests and that it reflects the least onerous path that can be taken to achieve the objective without an unreasonable degradation of the environment.”

The Court’s decision in Frederick could be interpreted to mean that, not just municipalities, but all Commonwealth agencies, including DEP, lack the power to regulate in the area of environmental protection beyond the bounds of their enabling legislation. In other words, the General Assembly decides, through legislation, how to delegate the Commonwealth’s obligations under the Environmental Rights Amendment, and not every state agency and municipality shares equally in those obligations. That said, municipalities should be careful not to read too much into the Commonwealth Court’s decision just yet, because the Pennsylvania Supreme Court is almost certain to weigh in on this case sometime in 2019.

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