On Tuesday, the Pennsylvania Supreme Court issued an order refusing to hear an appeal of the Commonwealth Court’s holding 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., 196 A.3d 677 (Pa. Cmwlth. 2018). 

As we previously reported, the Commonwealth Court, in Frederick, upheld a zoning ordinance that makes oil and gas development a permitted use by right in all zoning districts, including residential and agricultural districts, finding that the zoning ordinance does not violate Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment. 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 appellants failed to convince the Court that the zoning ordinance unreasonably impairs their rights under the Environmental Rights Amendment, and further failed to demonstrate that the zoning ordinance 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 Pennsylvania Supreme Court’s refusal to hear an appeal of Frederick leaves that decision in place as the primary guidance by which municipalities will continue to assess their duties and authority under the Environmental Rights Amendment.

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