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Robinson Township Washington County v. Commonwealth

Supreme Court of Pennsylvania

December 19, 2013

ROBINSON TOWNSHIP, WASHINGTON COUNTY, PA; Brian Coppola, Individually and in his Official Capacity as Supervisor of Robinson Township; Township of Nockamixon, Bucks County, PA; Township of South Fayette, Allegheny County, PA; Peters Township, Washington County, PA; David M. Ball, Individually and in his Official Capacity as Councilman of Peters Township; Township of Cecil, Washington County, PA; Mount Pleasant Township, Washington County, PA; Borough of Yardley, Bucks County, PA; Delaware Riverkeeper Network; Maya Van Rossum, The Delaware Riverkeeper; Mehernosh Khan, M.D.
v.
COMMONWEALTH of Pennsylvania; Pennsylvania Public Utility Commission; Robert F. Powelson, in his Official Capacity as Chairman of the Public Utility Commission; Office of the Attorney General of Pennsylvania; Kathleen Kane, in her Official Capacity as Attorney General of the Commonwealth of Pennsylvania; Pennsylvania Department of Environmental Protection; and E. Christopher Abruzzo, in his Official Capacity as Secretary of the Department of Environmental Protection. Appeal of: Pennsylvania Public Utility Commission; Robert F. Powelson, in his Official Capacity as Chairman of the Public Utility Commission; Pennsylvania Department of Environmental Protection; and E. Christopher Abruzzo, in his Official Capacity as Secretary of the Department of Environmental Protection. Robinson Township, Washington County, PA; Brian Coppola, Individually and in his Official Capacity as Supervisor of Robinson Township; Township of Nockamixon, Bucks County, PA; Township of South Fayette, Allegheny County, PA; Peters Township, Washington County, PA; David M. Ball, Individually and in his Official Capacity as Councilman of Peters Township; Township of Cecil, Washington County, PA; Mount Pleasant Township, Washington County, PA; Borough of Yardley, Bucks County, PA; Delaware Riverkeeper Network; Maya Van Rossum, The Delaware Riverkeeper; Mehernosh Khan, M.D.
v.
Commonwealth of Pennsylvania; Pennsylvania Public Utility Commission; Robert F. Powelson, in his Official Capacity as Chairman of the Public Utility Commission; Office of the Attorney General of Pennsylvania; Kathleen Kane, in her Official Capacity as Attorney General of the Commonwealth of Pennsylvania; Pennsylvania Department of Environmental Protection; and E. Christopher Abruzzo, in his Official Capacity as Secretary of the Department of Environmental Protection. Appeal of: Office of the Attorney General of Pennsylvania; Kathleen Kane, in her Official Capacity as Attorney General of the Commonwealth of Pennsylvania. Robinson Township, Washington County, PA; Brian Coppola, Individually and in his Official Capacity as Supervisor of Robinson Township; Township of Nockamixon, Bucks County, PA; Township of South Fayette, Allegheny County, PA; Peters Township, Washington County, PA; David M. Ball, Individually and in his Official Capacity as Councilman of Peters Township; Township of Cecil, Washington County, PA; Mount Pleasant Township, Washington County, PA; Borough of Yardley, Bucks County, PA; Delaware Riverkeeper Network; Maya Van Rossum, The Delaware Riverkeeper; Mehernosh Khan, M.D., Cross-appellants
v.
Commonwealth of Pennsylvania; Pennsylvania Public Utility Commission; Robert F. Powelson, in his Official Capacity as Chairman of the Public Utility Commission; Office of the Attorney General of Pennsylvania; Kathleen Kane, in her Official Capacity as Attorney General of the Commonwealth of Pennsylvania; Pennsylvania Department of Environmental Protection; and E. Christopher Abruzzo, in his Official Capacity as Secretary of the Department of Environmental Protection, Cross-appellees. Robinson Township, Washington County, PA; Brian Coppola, Individually and in his Official Capacity as Supervisor of Robinson Township; Township of Nockamixon, Bucks County, PA; Township of South Fayette, Allegheny County, PA; Peters Township, Washington County, PA; David M. Ball, Individually and in his Official Capacity as Councilman of Peters Township; Township of Cecil, Washington County, PA; Mount Pleasant Township, Washington County, PA; Borough of Yardley, Bucks County, PA; Delaware Riverkeeper Network; Maya Van Rossum, The Delaware Riverkeeper; Mehernosh Khan, M.D., Cross-appellants
v.
Commonwealth of Pennsylvania; Pennsylvania Public Utility Commission; Robert F. Powelson, in his Official Capacity as Chairman of the Public Utility Commission; Office of the Attorney General of Pennsylvania; Kathleen Kane, in her Official Capacity as Attorney General of the Commonwealth of Pennsylvania; Pennsylvania Department of Environmental Protection; and E. Christopher Abruzzo, in his Official Capacity as Secretary of the Department of Environmental Protection, Cross-appellees.

Argued Oct. 17, 2012.

Appeal from the Order and Opinion of the Commonwealth Court at No. 284 MD 2012, dated July 26, 2012. 52 A.3d 463 (Pa. Cmwlth. 2012). Other Court Judge: Dan Pellegrini, President Judge, Bernard L. McGinley, Bonnie Brigance Ledbetter, Robert E. Simpson, Kevin P. Brobson, Patricia A. McCullough, Anne E. Covey, Judges.

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Joshua Martin Bloom, Esq., Jonathan Robert Colton, Joshua M. Bloom and Associates, P.C., for International Union of Operating Engineers, Local No. 66, et al., amicus curiae.

Devin John Chwastyk, Esq., McNees, Wallace & Nurick, LLC, for Senator Joseph Scamati, III & Representative Samuel H. Smith, amicus curiae.

Robert Abraham Jackel, Esq., for Conservation Voters of Pennsylvania, amicus curiae.

Matthew Hermann Haverstick, Esq., James J. Rohn, Esq., Mark Edward Seiberling, Esq., Joshua John Voss, Esq., Conrad O'Brien PC, for PA PUC & PA Dept. of Environmental Protection.

Lawrence Henry Baumiller, Esq., Kevin J. Barber, Esq., Blaine Allen Lucas, Esq., Babst, Calland, Clements & Zomnir, P.C.,

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for Pennsylvania Coal Alliance, amicus curiae.

Walter A. Bunt Jr., Esq., Christopher R. Nestor, Esq., K & L Gates, LLP, David R. Overstreet, Esq., for PA Indep Oil & Gas; Marcellus Shale Coalition; Markwest Liberty; Penneco Oil; Chesapeake Appalachia, amicus curiae.

Richard Ejzak, Esq., Cohen & Grigsby, P.C., for Duquesne Light Holdings, Inc., amicus curiae.

Lester L. Greevy Jr., Esq., Greevy & Associates, John A. Shoemaker II, Esq., for National Association of Royalty Owners, Pennsylvania Chapter, amicus curiae.

Quin Mikael Sorenson, Esq., Sidney Austin, LLP, Joseph R. Guerra, Esq., for American Petroleum Institute, amicus curiae.

Jeffrey Joseph Norton, Esq., for Northern Wayne Property Owners Alliance, amicus curiae.

Russell Lane Schetroma, Esq., Kristian Erik White, Esq., Steptoe & Johnson, PLLC, for Civil & Environmental Consultants, Inc., amicus curiae.

Patrick Hilary Zaepfel, Esq., Kegel, Kelin, Almy & Grimm, L.L.P., for PA Chamber of Business & Industry; PA Manufacturers' Assoc.; et al., amicus curiae.

John J. Arminas, Esq., Jonathan Mark Kamin, Esq., Goldberg, Kamin & Garvin, John Michael Smith, Esq., Smith Butz, L.L.C., Lauren M. Williams, Esq., Jordan Berson Yeager, Esq., Curtin & Heefner LLP, Jennifer Lynn Fahnestock, Esq., William A. Johnson, Esq., Susan Jill Kraham, Esq., for Robinson Twp; Twp of Nockamixon; Twp of S. Fayette; Peters Twp; Twp of Cecil; Mt. Pleasant Twp; et al.

Howard Greeley Hopkirk, Esq., Kathleen Granahan Kane, Esq., Linda L. Kelly, Esq., John G. Knorr III, Esq., Calvin R. Koons, Esq., Gregory R. Neuhauser, Esq., PA Office of Attorney General, for Commonwealth of PA, Attorney General's Office.

Sarah L. Clark, Esq., David Vincent Vitale, Esq., Nora Winkelman, Esq., for House of Democratic Caucus, amicus curiae.

Scott Everett Coburn, Esq., for State Association of Township Supervisors, amicus curiae.

Mark Forrest Dunkle, Esq., Parkowski, Guerke & Swayze P.A., Katy Dunlap, Esq., for Trout Unlimited Inc., amicus curiae.

Stanley J.A. Laskowski, Esq., Caldwell & Kearns, P.C., David Evenhuis, Esq., for PA State Association of Boroughs, amicus curiae.

Robert P. Ging Jr., Esq., Robert P. Ging, Jr., P.C., for Mountain Watershed Association, amicus curiae.

Deborah Goldberg, Esq., Bridget Lee, Esq., Charles McPhedran, Esq., Berks Gas Truth, et al., amicus curiae.

Claude Joseph Hafner II, Esq., Thomas F. Lebo Jr., Esq., PA Senate, for Members of the Democrat Caucus of the PA Senate, amicus curiae.

Stephen B. Harris, Esq., Daniel Raichel, Esq., Katherine Sinding, Esq., for Bell Acres Borough, East Finley Township, et al., amicus curiae.

Thomas Lizzi, Esq., IP and Internet Law North, L.L.C., for PA Chapter of the American Planning Assoc., amicus curiae.

Patricia L. McGrail, Esq., Matthew David Racunas, Esq., Law Offices of Patricia L. McGrail, L.L.C., for Council of the City of Pittsburgh, amicus curiae.

CASTILLE, C.J., SAYLOR, EAKIN, BAER, TODD, McCAFFERY, ORIE MELVIN, JJ.

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OPINION

CASTILLE, Chief Justice.

Mr. Chief Justice Castille announces the Judgment of the Court. Mr. Chief Justice Castille delivers the Opinion of the Court with respect to Parts I, II, IV, V, and VI(A), (B), (D)-(G), in which Mr. Justice Baer, Madame Justice Todd, and Mr. Justice McCaffery join, and delivers an Opinion with respect to Parts III and VI(C), in which Madame Justice Todd and Mr. Justice McCaffery join.

In this matter, multiple issues of constitutional import arise in cross-appeals taken from the decision of the Commonwealth Court ruling upon expedited challenges to Act 13 of 2012, a statute amending the Pennsylvania Oil and Gas Act (" Act 13" ).[1] Act 13 comprises sweeping legislation affecting Pennsylvania's environment and, in particular, the exploitation and recovery of natural gas in a geological formation known as the Marcellus Shale. The litigation proceeded below in an accelerated fashion, in part because the legislation itself was designed to take effect quickly and imposed obligations which required the challengers to formulate their legal positions swiftly; and in part in recognition of the obvious economic importance of the legislation to the Commonwealth and its citizens.

The litigation implicates, among many other sources of law, a provision of this Commonwealth's organic charter, specifically Section 27 of the Declaration of Rights in the Pennsylvania Constitution, which states:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

PA. CONST. art. I, § 27 (the " Environmental Rights Amendment" ). Following careful deliberation, this Court holds that several challenged provisions of Act 13 are unconstitutional, albeit the Court majority affirming the finding of unconstitutionality is not of one mind concerning the ground for decision. This Opinion, representing the views of this author, Madame Justice Todd, and Mr. Justice McCaffery, finds that several core provisions of Act 13 violate the Commonwealth's duties as trustee of Pennsylvania's public natural resources under the Environmental Rights Amendment; other challenges lack merit; and still further issues require additional examination in the Commonwealth Court. Mr. Justice Baer, in concurrence, concurs in the mandate, and joins the Majority Opinion in all parts except Parts III and VI(C); briefly stated, rather than grounding merits affirmance in the Environmental Rights Amendment, Justice Baer would find that the core constitutional infirmity sounds in substantive due process.[2] Accordingly, we affirm in part and reverse in part the Commonwealth Court's decision, and remand for further proceedings consistent with specific directives later set forth in this Opinion. See Part VI (Conclusion and Mandate), infra.

I. Background

Before the Court are the direct appeals of the Commonwealth, by (a) the Office of

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the Attorney General and (former) Attorney General Linda L. Kelly, and (b) the Public Utility Commission and its Chairman Robert F. Powelson, and the Department of Environmental Protection and its (former) Secretary Michael L. Krancer (together, the " Commonwealth" ). We also decide cross-appeals by several Pennsylvania municipalities; by Brian Coppola and David M. Ball, two residents and elected local officials; by the Delaware Riverkeeper Network, a non-profit environmental group, and its Executive Director Maya Van Rossum; and by Mehernosh Khan, a Pennsylvania physician (together, the " citizens" ).[3] The parties challenge different aspects of the Commonwealth Court's decision, a decision which accepted in part and rejected in part numerous constitutional challenges to Act 13 of 2012.

The Marcellus Shale Formation has been a known natural gas reservoir (containing primarily methane) for more than 75 years.[4] Particularly in northeastern Pennsylvania, the shale rock is organic-rich and thick. Early drilling efforts revealed that the gas occurred in " pockets" within the rock formations, and that the flow of natural gas from wells was not continuous. Nonetheless, geological surveys in the 1970s showed that the Marcellus Shale Formation had " excellent potential to fill the needs of users" if expected technological development continued and natural gas prices increased. Those developments materialized and they permitted shale drilling in the Marcellus Formation to start in 2003; production began in 2005.[5]

In shale formations, organic matter in the soil generates gas molecules that absorb onto the matrix of the rock. Over time, tectonic and hydraulic stresses fracture the rock and natural gas ( e.g., methane) migrates to fill the fractures or pockets. In the Marcellus Shale Formation, fractures in the rock and naturally-occurring gas pockets are insufficient in size and number to sustain consistent industrial production of natural gas. The industry uses two techniques that enhance recovery of natural gas from these " unconventional" gas wells: hydraulic fracturing or " fracking" (usually slick-water fracking) and horizontal drilling. Both techniques inevitably do violence to the landscape. Slick-water fracking involves pumping at high pressure into the rock formation a mixture of sand and freshwater treated with a gel

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friction reducer, until the rock cracks, resulting in greater gas mobility. Horizontal drilling requires the drilling of a vertical hole to 5,500 to 6,500 feet— several hundred feet above the target natural gas pocket or reservoir— and then directing the drill bit through an arc until the drilling proceeds sideways or horizontally. One unconventional gas well in the Marcellus Shale uses several million gallons of water.[6] The development of the natural gas industry in the Marcellus Shale Formation prompted enactment of Act 13.

In February 2012, the Governor of Pennsylvania, Thomas W. Corbett, signed Act 13 into law. Act 13 repealed parts of the existing Pennsylvania Oil and Gas Act and added provisions re-codified into six new chapters in Title 58 of the Pennsylvania Consolidated Statutes. The new chapters of the Oil and Gas Act are:

— Chapter 23, which establishes a fee schedule for the unconventional gas well industry, and provides for the collection and distribution of these fees;
— Chapter 25, which provides for appropriation and allocation of funds from the Oil and Gas Lease Fund;
— Chapter 27, which creates a natural gas energy development program to fund public or private projects for converting vehicles to utilize natural gas fuel;
— Chapter 32, which describes the well permitting process and defines statewide limitations on oil and gas development;
— Chapter 33, which prohibits any local regulation of oil and gas operations, including via environmental legislation, and requires statewide uniformity among local zoning ordinances with respect to the development of oil and gas resources;
— Chapter 35, which provides that producers, rather than landowners, are responsible for payment of the unconventional gas well fees authorized under Chapter 23.

See 58 Pa.C.S. §§ 2301-3504. Chapter 23's fee schedule became effective immediately upon Act 13 being signed into law, on February 14, 2012, while the remaining chapters were to take effect sixty days later, on April 16, 2012.

In March 2012, the citizens promptly filed a fourteen-count petition for review in the original jurisdiction of the Commonwealth Court, broadly requesting a declaration that Act 13 is unconstitutional, a permanent injunction prohibiting application of Act 13, and legal fees and costs of litigation.[7] The citizens claimed that Act 13 violated the Pennsylvania Constitution, specifically, Article I, Section 1 (relating to inherent rights of mankind); Article I, Section 10 (relating in relevant part to

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eminent domain); Article I, Section 27 (relating to natural resources and the public estate); Article III, Section 3 (relating to single subject bills); and Article III, Section 32 (relating in relevant part to special laws). Moreover, the citizens argued that Act 13 was unconstitutionally vague, and violated the separation of powers doctrine and the due process clause of the U.S. Constitution. See Citizens' Petition for Review, 3/29/12, at 1-108 (Counts I-XIV) (citing PA. CONST. art. I, §§ 1, 10, 27; art. II, § 1; art. III, §§ 3, 32 and U.S. CONST. amend. XIV, § 1). The Commonwealth filed preliminary objections to the citizens' petition for review and, while the objections were pending, the parties also filed cross-applications for summary relief. Upon the request of the Public Utility Commission, the Department of Environmental Protection, and their respective executive officials, the matter was expedited and placed on the Commonwealth Court's earliest list for argument en banc. See Cmwlth. Ct. Order, 5/9/2012 ( per curiam ).[8]

On June 6, 2012, the parties argued the pending objections and motions for summary relief to an en banc panel of the Commonwealth Court. In July 2012, the Commonwealth Court sustained the Commonwealth's preliminary objections to eight counts of the citizens' petition for review; overruled objections to four counts of the petition for review and granted the citizens' application for summary relief on these four counts; and denied the Commonwealth's application for summary relief in its entirety. Accordingly, the en banc panel held Act 13 unconstitutional in part and enjoined application of: (1) Section 3215(b)(4) of Chapter 32, and (2) Section 3304 and any " remaining provisions of Chapter 33 that enforce [Section] 3304," i.e., Sections 3305 through 3309. Robinson Twp. v. Commonwealth, 52 A.3d 463, 494 (Pa.Cmwlth.2012).

The parties filed direct cross-appeals with this Court, which were later consolidated. At the parties' request, briefing and argument were expedited. The Public Utility Commission and its Chairman Robert F. Powelson, along with the Department of Environmental Protection and its then-Secretary Michael L. Krancer filed an appeal and appellants' brief on behalf of the Commonwealth (" Agencies' Brief (as appellants)" ) separate from the appeal and brief of the Office of the Attorney General and then-Attorney General Linda L. Kelly herself (" OAG's Brief (as appellant)" ). The citizens respond to the separate Commonwealth appeals in a joint appellees' brief (" Citizens' Brief (as appellees)" ). In the cross-appeals, the citizens file one appellants' brief (" Citizens' Brief (as cross-appellants)" ), to which the Commonwealth responds in two separate briefs, i.e., " Agencies' Brief (as cross-appellees)," " OAG's Brief (as cross-appellee)." In the four cross-appeals before this Court, the parties raise a total of fourteen issues (twelve of which are distinct), which we have reordered for clarity.

II. Justiciability: Standing, Ripeness, Political Question

We begin by addressing the several questions of justiciability raised by the parties. See Rendell v. Pa. State Ethics Comm'n, 603 Pa. 292, 983 A.2d 708, 717 (2009) (standing, ripeness, and political question " give body to the general notions

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of case or controversy and justiciability" ). Issues of justiciability are a threshold matter generally resolved before addressing the merits of the parties' dispute. Council 13, Am. Fed. of State, County & Mun. Employees, AFL-CIO v. Commonwealth, 604 Pa. 352, 986 A.2d 63, 74 n. 10 (2009)(" Council 13 " ). The Commonwealth Court sustained the Commonwealth's preliminary objections to the standing to sue of the Delaware Riverkeeper Network and its Executive Director Maya van Rossum, and of Mehernosh Khan, M.D.; overruled objections to the standing to sue and the ripeness of claims of individual citizen-petitioners and of the several municipalities; and overruled objections regarding the application of the political question doctrine to bar this action in its entirety. In their respective cross-appeals, the parties challenge the decisions of the lower court on individual issues that were adverse to their positions.

Parties may raise questions regarding standing, ripeness, and the political question doctrine by filing preliminary objections to a petition for review filed in the original jurisdiction of the Commonwealth Court, similar to those permitted in a civil action. See Pa.R.A.P. 1516(b) and note (Rule 1516(b) is patterned after Rule of Civil Procedure 1017(a) (Pleadings Allowed)). Upon review of a decision sustaining or overruling preliminary objections, " we accept as true all well-pleaded material facts set forth in the [petition for review] and all inferences fairly deducible from those facts." Thierfelder v. Wolfert, 617 Pa. 295, 52 A.3d 1251, 1253 (2012). We will affirm an order sustaining preliminary objections only if it is clear that the party filing the petition for review is not entitled to relief as a matter of law. See Stilp v. Commonwealth, 596 Pa. 62, 940 A.2d 1227, 1232 n. 9 (2007).

In contrast to the federal approach, notions of case or controversy and justiciability in Pennsylvania have no constitutional predicate, do not involve a court's jurisdiction, and are regarded instead as prudential concerns implicating courts' self-imposed limitations. See Fumo v. City of Philadelphia, 601 Pa. 322, 972 A.2d 487, 500 n. 5 (2009); Rendell, 983 A.2d at 717 & n. 9. Justiciability questions are issues of law, over which our standard of review is de novo and the scope of review is plenary. Council 13, 986 A.2d at 74 n. 10.

A. Standing and Ripeness

Generally, the doctrine of standing is an inquiry into whether the petitioner filing suit has demonstrated aggrievement, by establishing " a substantial, direct and immediate interest in the outcome of the litigation." Fumo, 972 A.2d at 496. There is considerable overlap between the doctrines of standing and ripeness, especially where the contentions regarding lack of justiciability are focused on arguments that the interest asserted by the petitioner is speculative, not concrete, or would require the court to offer an advisory opinion. Rendell, 983 A.2d at 718. In this sense, a challenge that a petitioner's interest in the outcome of the litigation is hypothetical may be pled either as determinative of standing or restyled as a ripeness concern although the allegations are essentially the same. Id. Standing and ripeness are distinct concepts insofar as ripeness also reflects the separate concern that relevant facts are not sufficiently developed to permit judicial resolution of the dispute. Pure questions of law, including those in the present cross-appeals, do not suffer generally from development defects and are particularly well suited for pre-enforcement review. Id. at 718 n. 13.

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1. Brian Coppola and David M. Ball

The Commonwealth Court held that Brian Coppola and David M. Ball had standing as elected officials and " as individual landowners and residents" of their respective townships. According to the court, Coppola and Ball live in a residential district in which, contrary to the prior legal regime, Act 13 now permits oil and gas operations. The value of Coppola's and Ball's existing homes, the panel stated, is affected negatively because the two can neither enjoy their properties as expected, nor guarantee to potential buyers the enjoyment of these properties without intrusion of burdensome industrial uses in their residential districts. Moreover, in their capacity as elected officials of their municipalities, the court concluded, Coppola and Ball both were aggrieved because, under provisions of Act 13, they would be " required to vote for zoning amendments they believe are unconstitutional." Robinson Twp., 52 A.3d at 475-76.

According to the Commonwealth, local officials do not have any cognizable legal interest in their powers to make land use determinations and, therefore, Coppola and Ball suffered no harm from the General Assembly's decision to alter or remove those powers. OAG's Brief (as appellant) at 22-26. While recognizing that distinct interests are implicated, the Commonwealth does not challenge the standing of Coppola and Ball as landowners and residents of townships whose zoning districts are affected by Act 13. See id. at 23 n.8. The citizens respond by subscribing to the Commonwealth Court's reasoning with respect to the standing of individual citizens to sue. Citizens' Brief (as appellees) at 48-62.

As noted, on appeal to this Court, the Commonwealth does not offer any arguments regarding the interests in the outcome of this litigation of Coppola and Ball in their individual capacities as landowners and residents of townships located in areas atop the Marcellus Shale Formation. We have consistently held that we will not raise standing claims sua sponte. Rendell, 983 A.2d at 717-18. Moreover, because Coppola and Ball both have standing to sue as landowners and residents and they assert the same claims in both individual and official capacities, we need not address whether they have a separate interest as local elected officials sufficient to confer standing. [9]

2. Robinson Township, Township of Nockamixon, Township of South Fayette, Peters Township, Township of Cecil, Mount Pleasant Township, Borough of Yardley

The Commonwealth Court also held that Robinson Township, Township of Nockamixon, Township of South Fayette, Peters Township, Township of Cecil, Mount Pleasant Township, and the Borough of Yardley had standing to sue because " Act 13 imposes substantial, direct and immediate obligations on them that affect their government[al] functions." In the alternative, the court noted that the municipalities' claims were " inextricably bound" with rights of property owners, who the Commonwealth conceded had standing to challenge the constitutionality of Act 13. Robinson Twp., 52 A.3d at 475. As a related matter, the Commonwealth Court also addressed the Commonwealth's ripeness challenge to the municipalities' claims. The court held that the constitutionality of

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Act 13 was an issue ripe for review as a pre-enforcement challenge because, once Act 13 went into effect, the townships would " be forced to submit to the regulations [that required modification of their zoning codes] and incur cost[s] and burden[s] that the regulations would impose or be forced to defend themselves against sanctions for non-compliance with the law." The panel thus concluded that the declaratory judgment action was properly filed. Id. at 479 n. 17.

On appeal, the Commonwealth characterizes the harm claimed by the municipalities as illusory because local governments (political subdivisions) have no inherent legal interest in the power to make land use determinations within their boundaries, and because municipalities do not enjoy constitutional protections similar to those of citizens. OAG's Brief (as appellant) at 24. The Commonwealth also asserts that the municipalities' claims are unripe because they are based on what the Commonwealth says is " a wholly speculative parade of horribles" that the municipalities claim " might occur in the future following implementation of Act 13." According to the Commonwealth, the record does not establish that appellee municipalities will be required to modify their zoning ordinances or that they will fail to do so and thereby incur penalties.[10] Agencies' Brief (as appellants) at 40-43.

The citizens respond that the municipalities have standing because Act 13 requires them to act in conflict with their functions, duties, and responsibilities under the Pennsylvania Constitution and other laws. For example, the citizens argue, existing ordinances that address land use in their municipalities were adopted pursuant to powers delegated to them by the General Assembly over a span of years, and provide a balance between citizens' safety, their rights, and orderly community development. The citizens claim that Act 13 displaces existing zoning ordinances and land use interests, prohibits municipalities from discharging their duties to adopt effective legislation to protect the health, safety, and welfare of citizens and the public natural resources from industrial activity, and requires them, instead, to create new exceptions for the oil and gas industry that are inconsistent with long-established municipal land use plans. Moreover, the citizens argue that Act 13 places local government in the untenable position of having to choose between either violating certain constitutional obligations or violating Act 13's newly-imposed requirements, which carries a risk of severe monetary penalties that most municipalities cannot afford. Municipalities, according to the citizens, are aggrieved because the effect upon their duty and interest in ensuring a healthy environment and a quality of life for their citizenry is direct, substantial, and immediate. Citizens' Brief (as appellees) at 51-60 (citing, inter alia, Franklin Twp. v. Commonwealth, 500 Pa. 1, 452 A.2d 718, 720 (1982) (Opinion Announcing Judgment of Court)). We do not view this question to be close; we agree with the citizens and affirm the Commonwealth Court's decision with respect to the standing of the municipalities and the ripeness of their claims.

This Court has held that a political subdivision has a substantial, direct, and immediate interest in protecting the environment

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and the quality of life within its borders, which interest confers upon the political subdivision standing in a legal action to enforce environmental standards. Susquehanna County v. Commonwealth, 500 Pa. 512, 458 A.2d 929, 931 (1983) (county has standing to appeal executive agency order related to operation of sanitary landfill by corporate permit holder); Franklin Twp., 452 A.2d at 720 (municipality and county have standing to appeal agency's decision to issue permit to operate solid waste facility). Political subdivisions, the Court has recognized, are legal persons, which have the right and indeed the duty to seek judicial relief, and, more importantly, they are " place[s] populated by people." Id. The protection of environmental and esthetic interests is an essential aspect of Pennsylvanians' quality of life and a key part of local government's role. Local government, therefore, has a substantial and direct interest in the outcome of litigation premised upon changes, or serious and imminent risk of changes, which would alter the physical nature of the political subdivision and of various components of the environment. Moreover, the same interest in the environment and in the citizenry's quality of life cannot be characterized as remote: " [w]e need not wait until an ecological emergency arises in order to find that the interest of the municipality and county faced with such disaster is immediate." Id. at 720-22. See Susquehanna County, 458 A.2d at 931 (" The aesthetic, environmental and quality of life considerations discussed in Franklin Township are equally applicable here." ); [11] cf. Pennsylvania Game Comm'n v. Dep't of Envt'l Res., 521 Pa. 121, 555 A.2d 812, 815 (1989) (unless otherwise explicitly provided, agency invested with duties or responsibilities regarding certain concerns has implicit power to be litigant in matters touching upon those concerns).

The Franklin Township and Susquehanna County decisions are dispositive of the Commonwealth's appeal with respect to the municipalities' standing and to the ripeness of their claims. Contrary to the Commonwealth's characterization, the municipalities' claims are not rooted simply in an asserted narrow legal interest in retaining powers as against the Commonwealth government to make land use determinations relating to oil and gas production. Rather, the municipalities, much like Messrs. Coppola and Ball, maintain claims premised upon threatened fundamental changes to esthetic and environmental values, which implicate the political subdivisions' responsibilities to protect the quality of life of its citizens. The aggrievement alleged by the political subdivisions is not limited to vindication of individual citizens' rights but extends to allegations that the challenged statute interferes with the subdivisions' constitutional duties respecting the environment and, therefore, its interests and functions as a governing entity. City of Philadelphia v. Commonwealth, 575 Pa. 542');"> 575 Pa. 542, 838 A.2d 566, 579 (2003) (citing Franklin Twp., supra ) (city has standing to bring action premised on assertions that challenged statute affects its interests and functions as governing entity). We find that the municipalities' interests are sufficiently substantial, direct, and immediate to confer standing. Furthermore, we also dismiss the Commonwealth's ripeness claim, which is merely a restyling of the remoteness concern already addressed in our standing discussion. See

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Rendell, 983 A.2d at 718 n. 13. The Commonwealth Court's decision is affirmed in this respect.

3. Maya van Rossum and the Delaware Riverkeeper Network

With respect to Maya van Rossum and the Delaware Riverkeeper Network, the Commonwealth Court sustained the Commonwealth's preliminary objections, and held that these parties failed to plead any direct and immediate interest or harm. According to the court, van Rossum's concern over the negative effect of Act 13 on her personal use and enjoyment of the Delaware River Basin and her work as Executive Director of the Delaware Riverkeeper Network did not amount to a sufficient interest in the outcome of the litigation to confer standing. The Commonwealth Court further explained that, although an association like the Delaware Riverkeeper Network may have standing as a representative of its members who are suffering immediate or threatened injury, the group had " not shown that at least one member has suffered or is threatened with suffering" the requisite type of injury. Robinson Twp., 52 A.3d at 476.

The Delaware Riverkeeper Network challenges the lower court's decision, asserting that its members are residents of areas whose existing protective zoning ordinances " will be eviscerated by Act 13," and that their interests in the values of their homes and businesses ( e.g., an organic farm in the Delaware River watershed) are similar to those of Messrs. Coppola and Ball. The Delaware Riverkeeper Network also emphasizes the deleterious effects of industrial activities close to its members' homes, including effects on their health and their ability to enjoy natural beauty, environmental resources, and recreational activities in the Delaware River corridor, such as fishing, boating, swimming, and bird-watching. The Delaware Riverkeeper Network further explains that drilling guided by Act 13 will affect well water supply as well as the sensitive ecosystems of the Delaware River, from which the group's members derive sustenance and other benefits. Citizens' Brief (as cross-appellants) at 61 (citing Friends of the Earth, Inc. v. Laidlaw Envt'l Servs. (TOC), Inc., 528 U.S. 167, 183, 120 S.Ct. 693, 145 L.Ed.2d 610 (2000) ( " [E]nvironmental plaintiffs adequately allege injury in fact when they aver that they use the affected area and are persons for whom the aesthetic and recreational values of the area will be lessened by the challenged activity." )). According to these citizens, esthetic and environmental well-being, " like economic well-being, are important ingredients of the quality of life in our society, and the fact that particular environmental interests are shared by the many rather than the few does not make them less deserving of legal protection through the judicial process." Id. (emphasis omitted) (quoting Unified Sportsmen of Pa. v. Pa. Game Comm'n, 903 A.2d 117, 122-24 (Pa.Cmwlth.2006)) (citing Sierra Club v. C.B. Morton, 405 U.S. 727, 734, 92 S.Ct. 1361, 31 L.Ed.2d 636 (1972)). Van Rossum, as Executive Director of the Delaware Riverkeeper Network, alleges similar concerns in the outcome of this litigation.

The Commonwealth responds that the Commonwealth Court's decision should be affirmed because any harm alleged by these particular parties is speculative and remote. The Commonwealth states that there are other parties better positioned to raise claims regarding Act 13's validity and, therefore, this Court need not recognize that these parties have standing. OAG's Brief (as cross-appellee) at 21-22; Agencies' Brief (as cross-appellees) at 21-22. Moreover, the Commonwealth notes that this Court " need not address the

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standing of the [Delaware Riverkeeper Network] and van Rossum" because these two appellants " did not seek any unique relief in their own name" and addressing their standing would not affect the disposition of the present appeals. Agencies' Brief (as cross-appellees) at 29.[12]

We agree with the citizens and reverse the decision of the Commonwealth Court with respect to the standing of the Delaware Riverkeeper Network and van Rossum, and with respect to the ripeness of their claims. The Commonwealth Court's finding that the Delaware Riverkeeper Network failed to show that any of its members were threatened with an injury sufficient to confer upon the group associational standing is not supported by the record. In response to preliminary objections, the citizens relied on of-record affidavits to show that individual members of the Delaware Riverkeeper Network are Pennsylvania residents and/or owners of property and business interests in municipalities and zoning districts that either already host or are likely to host active natural gas operations related to the Marcellus Shale Formation. See Citizens' Consolidated Brief in Opposition to [the Commonwealth's] Preliminary Objections, 5/14/2012, at 22-24. Like Messrs. Coppola and Ball (as to whom the Commonwealth conceded the standing issue), these members asserted that they are likely to suffer considerable harm with respect to the values of their existing homes and the enjoyment of their properties given the intrusion of industrial uses and the change in the character of their zoning districts effected by Act 13. See, e.g., id. at Exh. 15, 16 (affidavits of G. Swartz and T. Kowalchuk). These individual members have a substantial and direct interest in the outcome of the litigation premised upon the serious risk of alteration in the physical nature of their respective political subdivisions and the components of their surrounding environment. This interest is not remote. See Franklin Twp., 452 A.2d at 720-22; Susquehanna County, 458 A.2d at 931; accord Friends of the Earth, Inc., supra, 528 U.S. at 183, 120 S.Ct. 693.

Under Pennsylvania law, an association has standing as representative of its members to bring a cause of action even in the absence of injury to itself, if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the action challenged. Pennsylvania Med. Soc'y v. Dep't of Pub. Welfare, 614 Pa. 574, 39 A.3d 267, 278 (2012); accord South Whitehall Twp. Police Serv. v. South Whitehall Twp., 521 Pa. 82, 555 A.2d 793, (1989) (collective bargaining agent has standing to sue if members are aggrieved, even if action is not related solely to collective bargaining). Several members of the Delaware Riverkeeper Network have alleged sufficient injury to show that they are aggrieved by the enactment of Act 13. As these members' associational representative, the Delaware Riverkeeper Network has standing. Van Rossum, as the Executive Director of the Delaware Riverkeeper Network, is in a similar legal position and, as a result, has

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standing in her official capacity to represent the membership's interests in this matter. Cf. Pennsylvania Med. Soc'y, supra. Accordingly, the decision of the Commonwealth Court with respect to the standing of the Delaware Riverkeeper Network and Ms. van Rossum is reversed.

4. Mehernosh Khan, M.D.

Finally, the Commonwealth Court held that Dr. Khan lacked standing to sue the Commonwealth in this matter because the interest he asserted was remote. The citizens appeal the Commonwealth Court's decision, explaining that Dr. Khan is a physician who treats patients in an area where drilling operations are taking place, and whose interest in the outcome of this litigation is sufficient to confer standing. The doctor claims that Act 13's restrictions on obtaining and sharing information with other physicians regarding the chemicals used in drilling operations impede his ability to diagnose and treat his patients properly. See 58 Pa.C.S. § 3222.1(b)(10)-(11).[13] In denying Dr. Khan standing, the Commonwealth Court reasoned that Dr. Khan would not have standing until he actually requested confidential information under Section 3222.1(b) of Act 13, and that information either was not supplied at all or was supplied with restrictions interfering with his ability to provide proper medical care to his patients. The court also noted that, if upon receiving information on chemicals protected as trade secrets by Section 3222.1(b), Dr. Khan believes that the chemicals pose a public health hazard, he would have standing then to challenge the confidentiality provisions. See Robinson Twp., 52 A.3d at 477-78. Although the Commonwealth Court articulated its holding to sustain the Commonwealth's objections in terms of lack of standing, the court's reasoning also addresses the Commonwealth's ripeness argument.

On appeal, Dr. Khan argues that the challenged provision prevents physicians from sharing diagnostic test results ( e.g., blood test results), and a patient's history of exposure, including the dose and duration of exposure— all of which are essential tools of treating patients and practicing medicine competently. Dr. Khan continues that the restrictions on sharing fracking chemicals' composition places medical professionals in a position to choose between

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abiding by the mandatory provisions of Act 13 and adhering to their ethical and legal duties to report findings in medical records and to make these records available to patients and other medical professionals. Dr. Khan's injury is therefore actual and immediate, the citizens say, given that the health of patients is jeopardized by a potentially lengthy wait for resolution of a challenge after Section 3222.1(b) goes into effect. Citizens' Brief (as cross-appellants) at 52-56.

The Commonwealth generally subscribes to the Commonwealth Court's reasoning. Additionally, the Commonwealth claims that Dr. Khan's interest is illusory because the restriction Act 13 places upon medical professionals allows the use of confidential information for the health needs of an individual patient, and Dr. Khan does not explain why, as a treating physician, he needs further disclosure for non-medical purposes. OAG's Brief (as cross-appellee) at 22-24. Furthermore, the Commonwealth argues that Dr. Khan's harm is speculative because it is based on the rights of his patients and on " serial ‘ mights' " which are unfounded. According to the Commonwealth, Section 3222.1(b) is not " a muzzle" on the dissemination of information, but it actually requires disclosures of otherwise protected information. Agencies' Brief (as cross-appellees) at 22-27.

We agree with the citizens that Dr. Khan's interest in the outcome of litigation regarding the constitutionality of Section 3222.1(b) is neither remote nor speculative. Dr. Khan describes the untenable and objectionable position in which Act 13 places him: choosing between violating a Section 3222.1(b) confidentiality agreement and violating his legal and ethical obligations to treat a patient by accepted standards, or not taking a case and refusing a patient medical care. The Commonwealth's attempt to redefine Dr. Khan's interests and minimize the actual harm asserted is unpersuasive. Our existing jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between equally unappealing options and where the third option, here refusing to provide medical services to a patient, is equally undesirable. See, e.g., Cozen O'Connor v. City of Phila. Bd. of Ethics, 608 Pa. 570, 13 A.3d 464 (2011) (law firm has standing to test validity of Ethics Act provision in advance of undertaking potentially prohibited action where alternative is testing law by defying it and potentially damaging firm's ethical standing and reputation; third option of maintaining client debt on books for decades equally unappealing); Shaulis v. Pa. State Ethics Comm'n, 574 Pa. 680, 833 A.2d 123 (2003) (attorney has standing to challenge statutory limitation on her practice of law in certain venues without taking prohibited action that would expose her to ethical investigation she was attempting to forestall; third option of foregoing practice in area of expertise equally unappealing); see also Arsenal Coal Co. v. Commonwealth, 505 Pa. 198, 477 A.2d 1333 (1984) (pre-enforcement review of regulations is appropriate where lengthy process of addressing regulations' validity in enforcement action would result in ongoing uncertainty in industry and potential operational impediments and penalties).

In light of Dr. Khan's unpalatable professional choices in the wake of Act 13, the interest he asserts is substantial and direct. Moreover, Dr. Khan's interest is not remote. A decision in this matter may well affect whether Dr. Khan, and other medical professionals similarly situated, will accept patients and may affect subsequent medical decisions in treating patients— events which may occur well before the doctor is in a position to request

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information regarding the chemical composition of fracking fluid from a particular Marcellus Shale industrial operation. Additional factual development that would result from awaiting an actual request for information on behalf of a patient is not likely to shed more light upon the constitutional question of law presented by what is essentially a facial challenge to Section 3222.1(b). Accordingly, we reverse the decision of the Commonwealth Court regarding Dr. Khan's standing and we remand the matter to the Commonwealth Court for a merits decision of Dr. Khan's substantive claims. [14]

B. Political question

Also in the justiciability rubric, the Commonwealth argues that the Commonwealth Court " went beyond merely assessing the constitutionality of Act 13" and violated the separation of powers doctrine. According to the Commonwealth, the Commonwealth Court interfered with the exercise of the General Assembly's constitutional police powers by " revisiting" and " second-guessing" legislative choices. The Commonwealth accuses the court below of substituting its own " policy judgments and preferences" to dictate how the General Assembly should regulate local government. Citing Article I, Section 27 and Article IX, Section 1 of the Pennsylvania Constitution, the Commonwealth asserts that the General Assembly has the power and exclusive authority to retract local governments' powers to regulate oil and gas operations. See PA. CONST. art. I, § 27; art. XI, § 1 (General Assembly to provide by general law for local government). The lower court, according to the Commonwealth, should have respected Act 13 as an exercise of legislative branch power and should have refrained from acting in this matter at all. [15]

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In support of this global position of non-reviewability, the OAG's Brief asserts that the sovereign is the constitutional trustee of Pennsylvania's public natural resources and the General Assembly is vested with exclusive authority to regulate the oil and gas industry. OAG's Brief (as appellant) at 27 (citing PA. CONST. art. I, § 27). The Commonwealth portrays the citizens here as merely discontent with the General Assembly's policy choices, and their challenge as a veiled attempt to change the result of a political clash within the General Assembly, in which the interests of these particular citizens were defeated. According to the Commonwealth, even proceeding to a merits decision here interferes with the General Assembly's " discretionary authority," as the Constitution does not articulate any manageable standards by which the judicial branch can reasonably assess the merits of the General Assembly's policy choices regarding the Commonwealth's natural resources. Id. at 27-30.

The citizens respond that the Commonwealth Court simply decided a constitutional challenge to Act 13 properly subject to judicial review, and pointedly note that the General Assembly does not police the constitutionality of its own acts. According to the citizens, the political question doctrine bars courts from deciding " a very limited subset of cases," i.e., those cases in which courts are considering matters that are committed in the constitutional text to a co-equal branch of government and, in addition, which contain no claims that the co-equal branch of government acted outside the scope of its constitutional authority. The citizens characterize their challenges as soundly based upon the question of whether the General Assembly enacted legislation in accordance with constitutional mandates that exist precisely to restrict its powers. The citizens dismiss as an unsubstantiated label the Commonwealth's claims that their challenge is to unreviewable policy determinations by the General Assembly. According to the citizens, the limitations on the General Assembly's powers derive from the Constitution, not from some general body of law, and alleged good intentions of the legislative branch " do not excuse non-compliance with the Constitution." In this regard, the citizens emphasize that courts, and the Pennsylvania Supreme Court in particular, have the power to determine the constitutionality of statutes, and the General Assembly cannot " instruct" courts as to what measures are constitutional, or are beyond the reach of a constitutional challenge. Citizens' Brief (as appellees) at 63-66.

The Commonwealth Court held that the citizens presented a justiciable question. On this point, the en banc panel was unanimous. The court noted that it was simply required to determine whether Act 13 violates the Pennsylvania Constitution, a task implicating a core judicial function. The court rejected the Commonwealth's arguments, reasoning that adopting the Commonwealth's approach to the political question doctrine would mean that no action of the General Assembly, defended as an exercise of its police power, would ever be subject to a constitutional challenge. Robinson Twp., 52 A.3d at 479.

We agree with the core position of the citizens and the Commonwealth Court. The political question doctrine derives

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from the principle of separation of powers which, although not expressed in our Constitution, is implied by the specific constitutional grants of power to, and limitations upon, each co-equal branch of the Commonwealth's government. Our Constitution vests legislative power in the General Assembly, which consists of the Senate and the House of Representatives. See PA. CONST. art. II, § 1. The General Assembly is charged with the passage of laws generally and, additionally, with passage of specifically authorized legislation. See PA. CONST. art. III, §§ 1-27. Passage of laws is subject to the restrictions of Article III, Sections 28 through 32, and is further limited fundamentally by those rights and powers reserved to the people in Article I. See PA. CONST. art. III, §§ 28-32; art. I, § 25. The judicial power of the Commonwealth is not vested in the General Assembly, but in a unified judicial system, which includes the Commonwealth Court and, ultimately, this Court, which presides over our branch of government. See PA. CONST. art. V, § 1.

In application, the Court has recognized that " [i]t is the province of the Judiciary to determine whether the Constitution or laws of the Commonwealth require or prohibit the performance of certain acts. That our role may not extend to the ultimate carrying out of those acts does not reflect upon our capacity to determine the requirements of the law." Council 13, 986 A.2d at 75 (quoting Thornburgh v. Lewis, 504 Pa. 206, 470 A.2d 952, 955 (1983)). This is not a radical proposition in American law. See, e.g., Marbury v. Madison, 1 Cranch 137, 166, 2 L.Ed. 60 (1803) (" where a specific duty is assigned by law [to another branch of government], and individual rights depend upon the performance of that duty, it seems equally clear that the individual who considers himself injured, has a right to resort to the laws of his country for a remedy" ).[16] Indeed, " [o]rdinarily, the exercise of the judiciary's power to review the constitutionality

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of legislative action does not offend the principle of separation of powers," and abstention under the political-question doctrine is implicated in limited settings. See Hosp. & Healthsystem Ass'n of Pa. v. Commonwealth, __ Pa. __, 77 A.3d 587, 596 (2013) (" HHAP " ) (quoting Sweeney v. Tucker, 473 Pa. 493, 375 A.2d 698, 705 (1977)).

The applicable standards to determine whether a claim warrants the exercise of judicial abstention or restraint under the political question doctrine are well settled. Courts will refrain from resolving a dispute and reviewing the actions of another branch only where " the determination whether the action taken is within the power granted by the Constitution has been entrusted exclusively and finally to the political branches of government for ‘ self-monitoring.’ " Sweeney, 375 A.2d at 706; Council 13, 986 A.2d at 76 (quoting Thornburgh ). To illustrate our approach to the political question doctrine, we customarily reference the several formulations by which the U.S. Supreme Court has described a " political question" in Baker v. Carr, 369 U.S. 186, 217, 82 S.Ct. 691, 7 L.Ed.2d 663 (1962). See, e.g., Council 13; Thornburgh. Cases implicating the political question doctrine include those in which: there is a textually demonstrable constitutional commitment of the disputed issue to a coordinate political department; there is a lack of judicially discoverable and manageable standards for resolving the disputed issue; the issue cannot be decided without an initial policy determination of a kind clearly for non judicial discretion; a court cannot undertake independent resolution without expressing lack of the respect due coordinate branches of government; there is an unusual need for unquestioning adherence to a political decision already made; and there is potential for embarrassment from multifarious pronouncements by various departments on one question. See Council 13, 986 A.2d at 75 (quoting Baker, 369 U.S. at 217, 82 S.Ct. 691); see also HHAP, 77 A.3d at 596-98 & n. 11 (listing examples).

We have made clear, however, that " [w]e will not refrain from resolving a dispute which involves only an interpretation of the laws of the Commonwealth, for the resolution of such disputes is our constitutional duty." Council 13, 986 A.2d at 76 (quoting Thornburgh ). " [T]he need for courts to fulfill their role of enforcing constitutional limitations is particularly acute where the interests or entitlements of individual citizens are at stake." HHAP, 77 A.3d at 597 (citing Sweeney, 375 A.2d at 709 (" [T]he political question doctrine is disfavored when a claim is made that individual liberties have been infringed." )); accord Gondelman v. Commonwealth, 520 Pa. 451, 554 A.2d 896, 899 (1989) (" Any concern for a functional separation of powers is, of course, overshadowed if the [statute] impinges upon the exercise of a fundamental right...." ). There is no doubt that the General Assembly has made a policy decision respecting encouragement and accommodation of rapid exploitation of the Marcellus Shale Formation, and such a political determination is squarely within its bailiwick. But, the instant litigation does not challenge that power; it challenges whether, in the exercise of the power, the legislation produced by the policy runs afoul of constitutional command. Responsive litigation rhetoric raising the specter of judicial interference with legislative policy does not remove a legitimate legal claim from the Court's consideration; the political question doctrine is a shield and not a sword to deflect judicial review. Council 13, 986 A.2d at 75-76. Furthermore, a statute is not exempt from a challenge brought for judicial consideration simply because it is said to be the General Assembly's expression of policy rendered in a polarized political context. See id. at 76; HHAP, 77 A.3d at 598 (" political question doctrine does not exist to remove a

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question of law from the Judiciary's purview merely because another branch has stated its own opinion of the salient legal issue" ). Whatever the context may have been, it produced legislation; and it is the legislation that is being challenged. As the U.S. Supreme Court has stated:

The idea that any legislature, state or federal, can conclusively determine for the people and for the courts that what it enacts in the form of law, or what it authorizes its agents to do, is consistent with the fundamental law, is in opposition to the theory of our institutions. The duty rests upon all courts, federal and state, when their jurisdiction is properly invoked, to see to it that no right secured by the supreme law of the land is impaired or destroyed by legislation. This function and duty of the judiciary distinguishes the American system from all other systems of government. The perpetuity of our institutions, and the liberty which is enjoyed under them, depend, in no small degree, upon the power given the judiciary to declare null and void all legislation that is clearly repugnant to the supreme law of the land.

Smyth v. Ames, 169 U.S. 466, 527-28, 18 S.Ct. 418, 42 L.Ed. 819 (1898), overruled on other grounds by Federal Power Comm'n v. Natural Gas Pipeline Co. of Am., 315 U.S. 575, 602, 62 S.Ct. 736, 86 L.Ed. 1037 (1942); accord Nat'l Fed'n of Indep. Bus. v. Sebelius, __ U.S. __, 132 S.Ct. 2566, 2577-80, 183 L.Ed.2d 450 (2012) (citing Marbury v. Madison, 1 Cranch at 175-76 (" The powers of the legislature are defined and limited; and that those limits may not be mistaken, or forgotten, the constitution is written. Our respect for Congress's policy judgments thus can never extend so far as to disavow restraints on federal power that the Constitution carefully constructed.... And there can be no question that it is the responsibility of this Court to enforce the limits on federal power by striking down acts of Congress that transgress those limits." )).

Here, the Commonwealth does not identify any provision of the Constitution which grants it authority to adopt non-reviewable statutes addressing either oil and gas or policies affecting the environment. Organic constitutional provisions on which the citizens rely offer, as will become evident in our later discussion, the type of judicially discoverable and manageable standards by which courts are able to measure and resolve the parties' dispute without overstepping the Judiciary's own constitutional bounds. Furthermore, this case presents no prospect that the Court would be required to make an initial policy determination outside our judicial function or undertake independent resolution of a policy matter outside the purview of our judicial authority; nor is there an unusual need for unquestioning adherence to the legislative decision already made. Indeed, in terms of the judicial function, at least, this case is not extraordinary at all: all that is required to resolve the parties' various disputes is that we construe and apply constitutional provisions and determine whether aspects of Act 13 violate our charter. The task is neither more nor less intrusive upon a coordinate branch function than in other matters in which we are called upon to determine the constitutional validity of a legislative act. Accord HHAP, 77 A.3d at 598 & n. 12 (noting that notion of " respect" due coordinate branches is relatively narrow criterion in political question jurisprudence; judicial finding that Legislature passed unconstitutional law entails no lack of respect in constitutional sense nor does it create political question).

Litigation polemics aside, Act 13 is a legislative act subject to the strictures of the Pennsylvania Constitution and the U.S. Constitution. The Commonwealth offers no persuasive argument that the citizens' varied challenges raise only questions essentially

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political in nature regarding the validity of Act 13. The parties' dispute implicates questions of whether Act 13 was adopted pursuant to constitutional procedures, and of whether Act 13 impinges upon the rights reserved to citizens and guaranteed by the Pennsylvania Constitution and the U.S. Constitution. The evident investment of the parties to this dispute in the policies articulated in and the politics behind Act 13 do not serve to alter the nature as " questions of law" of the specific legal issues before us. See Council 13, 986 A.2d at 76. The nature of the citizens' claims requires nothing more than the exercise of powers within the courts' core province: the vindication of a constitutional right. See Thornburgh, 470 A.2d at 955-56. Accordingly, we conclude that the citizens' claims are justiciable and, as a result, the Commonwealth Court's decision on this point is affirmed.

III. The Constitutionality of Act 13

As noted, on the merits, the Commonwealth Court held that certain specific provisions of Act 13 were unconstitutional. The en banc panel enjoined enforcement of Sections 3215(b)(4) and 3304 of Act 13, and of those provisions of Chapter 33 which enforce Section 3304. See Robinson Twp., 52 A.3d at 485, 493 (citing 58 Pa.C.S. §§ 3215(b)(4), 3304-3309). The effect of the injunction was to prohibit the Department of Environmental Protection from granting waivers of mandatory setbacks from certain types of waters of the Commonwealth, see 58 Pa.C.S. § 3215(b)(4); and to permit local government to enforce existing zoning ordinances, and adopt new ordinances, that diverge from the Act 13 legal regime, without concern for the legal or financial consequences that would otherwise attend non-compliance with Act 13, see 58 Pa.C.S. §§ 3304-3309.

The Commonwealth Court rejected the citizens' remaining claims. Specifically, the panel sustained the Commonwealth's preliminary objections to claims: (1) that provisions of Act 13 violate the Environmental Rights Amendment, Article I, Section 27 of the Pennsylvania Constitution; (2) that Act 13 is a " special law," in violation of Article III, Section 32 of the Pennsylvania Constitution; (3) that Section 3241(a) permits a private taking of property in violation of Article I, Sections 1 and 10 of the Pennsylvania Constitution; (4) that Section 3305(a)-(b) delegates judicial and legislative powers to the Public Utility Commission, an executive agency, in violation of the separation of powers doctrine; and (5) that provisions of Act 13 are unconstitutionally vague.[17]

On appeal, the Commonwealth challenges the lower court's decision regarding Sections 3215(b)(4) and 3304 through 3309, but supports affirmance of the Commonwealth Court in all other respects. The citizens offer several reasons upon which to affirm the aspects of the Commonwealth Court's decision sustaining their challenges. And, the citizens advance other theories in support of the claim that other provisions of Act 13 and Act 13, in its totality, are unconstitutional.

A. Article I, Section 27 of the Pennsylvania Constitution (Environmental Rights)

Article I, Section 1 of the Pennsylvania Constitution and the Fourteenth Amendment to the U.S. Constitution (Due Process);

Article 11, Section 1 of the Pennsylvania Constitution (Legislative Power)

We begin by reviewing the parties' respective claims regarding

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Sections 3215(b)(4) and (d), 3303, and 3304. See Citizens' Petition for Review, 3/29/12, at 27-49, 63-82, 88-91 (Counts I-III, VI, VIII). The Commonwealth Court granted the citizens summary relief on separation of powers and due process theories, holding that Sections 3215(b)(4) and 3304 are unconstitutional.[18] As we will explain in more detail infra, Section 3215(b)(4) creates a process by which the Department of Environmental Protection grants waivers to oil or gas well permit applicants from statutory protections of certain types of waters of the Commonwealth. Section 3304, meanwhile, implements a uniform and statewide regulatory regime of the oil and gas industry by articulating narrow parameters within which local government may adopt ordinances that impinge upon the development of these resources. See 58 Pa.C.S. §§ 3215(b)(4), 3304. The court sustained the Commonwealth's preliminary objections with respect to the remaining claims.

In enjoining Section 3304, the Commonwealth Court held that the provision violated the citizens' due process rights by requiring local governments to amend their existing zoning ordinances without regard for basic zoning principles and, thereby, failing to protect interests of property owners from harm and altering the character of neighborhoods. Robinson Twp., 52 A.3d at 484-85. The court explained that zoning laws protect landowners' enjoyment of their property by categorizing uses, designating compatible uses to the same district, and generally excluding incompatible uses from districts, with limited exceptions that do not affect the comprehensive land use scheme of the community. Local government, according to the court, relies on public input to produce a rational plan of development, under which " each piece of property pays, in the form of reasonable regulation of its use, for the protection that the plan gives to all property lying within the boundaries of the plan." Id. at 482. The court stated that the goal of zoning is to preserve the rights of property owners within the constraints of the maxim " use [your] own property as not to injure your neighbors." Id. (quoting In re Realen Valley Forge Greenes Assocs., 576 Pa. 115, 838 A.2d 718, 728 (2003)).

Addressing residential districts in particular, the court noted that " reserving land for single-family residences preserves the character of neighborhoods, securing zones where family values, youth values, and the blessings of quiet seclusion and clean air make the area a sanctuary for people." Id. at 481 (quoting Village of Belle Terre v. Boraas, 416 U.S. 1, 9, 94 S.Ct. 1536, 39 L.Ed.2d 797 (1974)). But, the court observed, Act 13 requires municipalities to act affirmatively to allow incompatible uses, such as " drilling operations and impoundments, gas compressor stations, storage and use of explosives" in all zoning districts, including residential, and " applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise." Id. at 484-85. The court held that, because it commands

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unconstitutional zoning outcomes, Section 3304 violates due process.

The court also rejected the Commonwealth's attempt to justify Act 13's abrupt disruption of existing zoning schemes as an exercise of police power rationally related to its stated purposes, i.e., the optimal development of the Commonwealth's natural resources. According to the court, the interests that justify the exercise of police power in zoning and in the development of the oil and gas industry are not the same. This is so because the interest in oil and gas development is centered on efficient production and exploitation of resources, while the interest in zoning focuses on the orderly development and regulation of land use, consistent with local demographic and environmental concerns. Id. at 483 (quoting Huntley & Huntley, Inc. v. Borough Council of Oakmont, 600 Pa. 207, 964 A.2d 855, 865 (2009)). Accordingly, the court explained, Act 13's stated purposes, including its main interest in accommodating the exploitation of the Commonwealth's oil and gas resources, are not a creditable justification for the Section 3304 zoning guidelines; zoning action is only justified if compliant with the comprehensive plan of the community. Id. at 483-84 (citing 58 Pa.C.S. § 3202).

Regarding Section 3215(b)(4), which the Commonwealth Court also enjoined, the panel explained that the provision lists specific setbacks between a water source and a gas well bore (the physical well bore is the opening in the ground through which gas is extracted and is generally surrounded by the wider disturbed area of a well site). Waiver of planned statutory setbacks is broadly authorized by Section 3215(b)(4) and neither other parts of Section 3215, nor Act 13 generally, constrain or guide the exercise of discretion by the Department of Environmental Protection, an executive agency, as to when setback waivers are appropriate. The panel concluded that Act 13 gives the executive branch " the power to make legislative policy judgments otherwise reserved for the General Assembly" and is, therefore, unconstitutional on that ground. Id. at 493 (citing PA. CONST. art. II, § 1; Pennsylvanians Against Gambling Expansion Fund, Inc. v. Commonwealth, 583 Pa. 275, 877 A.2d 383 (2005)(" PAGE " )).

Finally, the Commonwealth Court briefly discussed and ultimately rejected the citizens' claims regarding both the enjoined provisions and Sections 3215(d) and 3303, premised upon Article I, Section 27 of the Pennsylvania Constitution.[19] With respect to this Environmental Rights Amendment challenge, the Commonwealth Court stated that any municipal obligation " to strike a balance between oil and gas development and the preservation of natural, scenic, historic and esthetic values of the environment" derived from the Municipalities Planning Code, a General Assembly enactment. Because Act 13 preempts environmental obligations, the panel determined that municipalities are " relieved of their responsibilities to strike a balance between oil and gas development and environmental concerns under the [Municipalities Planning Code]." The court thus concluded that the citizens failed to state a claim for relief under Article I, Section 27. Id. at 488-89 (citing 53 P.S. § 10301(a)(6);

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Cmty. Coll. of Del. County v. Fox, 20 Pa.Cmwlth. 335, 342 A.2d 468 (1975)).

Judge Brobson filed a dissenting opinion, joined by Judges Simpson and Covey. The dissent would have held that Act 13, except for Section 3215(b)(4)' s setback waiver provision, is constitutional. According to the dissent, Section 3304 of Act 13 was a legitimate exercise of the police power and it was not the court's " role to pass upon the wisdom of a particular legislative enactment." Id. at 497-98 (Brobson, J., dissenting, joined by Simpson, Covey, JJ.).

1. The Parties' Arguments

As appellant, the Commonwealth argues that the Commonwealth Court erred in granting the citizens summary relief as to Sections 3304 and 3215(b)(4) of Act 13. Regarding Section 3304, the Commonwealth argues that the General Assembly delegated zoning powers to municipalities through the Municipalities Planning Code; the Code, like any other statute, is subject to amendment, alteration, and repeal by subsequent enactments, such as Act 13. According to the Commonwealth, the Commonwealth Court turned the relationship between the General Assembly and local government " upside-down" by concluding that Section 3304 is unconstitutional. Agencies' Brief (as appellants) at 12-15.

Moreover, the Commonwealth states that Act 13, in its entirety, is constitutional. The Commonwealth notes that the General Assembly exercised its " broad police power" to enact Act 13, which is " a comprehensive reform of the oil and gas laws of this Commonwealth driven by, among other things, policy determinations of promoting the development of the Commonwealth's vast natural gas reserves; encouraging economic development, job creation and energy self-sufficiency; providing for impact fees to benefit municipalities where unconventional gas drilling occurs; ensuring uniformity of local zoning ordinances throughout the Commonwealth; and revising and updating the Commonwealth's environmental regulations related to the oil and gas industry." According to the Commonwealth, Act 13's stated purposes are valid legislative objectives, and the means for implementing these objectives is based on the General Assembly's " informed judgment" regarding the balance of interests at issue. Id. at 15. The Commonwealth offers that Act 13 is a non-arbitrary and non-discriminatory exercise of the police power. This power, the Commonwealth states, is one of the " least limitable powers" of the General Assembly, and the burden to prove that the General Assembly exceeded its power is heavy. Id. at 17 (quoting Eagle Envtl. II, L.P. v. Commonwealth, 584 Pa. 494, 884 A.2d 867, 882 (2005)).[20]

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The standard to overcome the strong presumption of constitutionality of duly-enacted legislation is whether the statute " clearly, palpably, and plainly" violates the Constitution. Id. at 880. The Commonwealth states that the en banc panel failed to apply this deferential standard of review to the citizens' claims regarding Section 3304.[21] If the Commonwealth Court had applied the proper standard, the Commonwealth asserts, the court would have concluded that Act 13 is a valid exercise of the police power, and that any and all amendments to local ordinances required by Act 13 would be a fortiori valid. Id. at 22-23.[22]

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Regarding Section 3215(b)(4), the Commonwealth argues that the lower court erred in determining that the General Assembly failed to make basic policy choices and/or to create adequate standards to guide and restrain the setback waiver decisions committed to the Department of Environmental Protection. According to the Commonwealth, Section 3215(b)(4) cannot be read separately from the rest of subsection (b), which articulates " rigid setbacks" from particular bodies of water and provides that additional conditions may be employed if necessary to protect the waters of the Commonwealth. The Department, according to the Commonwealth, indeed has discretion to grant waivers but its discretion is restrained by the condition that a permittee must submit a plan identifying additional measures to protect the Commonwealth's waters. See Agencies' Brief (as appellants) at 24-28. [23]

From the Commonwealth's perspective, Section 3215(b) therefore " narrowly" delimits agency discretion and precludes the issuance of arbitrary setback waivers. In addition, under Section 3215(b), the Department may not burden the permittee with more than " necessary" permit conditions. These requirements, according to the Commonwealth, create a floor and a ceiling within which the Department may articulate appropriate permit restrictions. In its determinations, the Commonwealth states, the Department is further " guided and restrained" by the purposes of Act 13 and by the Commonwealth's other environmental statutes, such as the Clean Water Act. Id. at 29 (citing 58 Pa.C.S. § 3202); see also OAG's Brief (as appellant) at 37 (citing 58 Pa.C.S. § 3257 (existing rights and remedies preserved and cumulative remedies authorized)). The Commonwealth asserts that this Court has never required the General Assembly " to set forth every detail of what is and is not necessary" or to establish exact setbacks for industrial well drilling. Rather, " details of a general program can be left to the particular agency." Agencies' Brief (as appellants) at 30 (citing Dussia v. Barger, 466 Pa. 152, 351 A.2d 667, 672 (1976)). In the Commonwealth's view, Section 3215(b) does not simply direct the Department to consider certain standards, but creates a process with definite guidelines and a specific performance standard for the Department to follow in determining whether to grant setback waivers. Id. at 31-32 (citing PAGE, 877 A.2d at 418). The statutory scheme then permits the

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Department to use its expertise to apply express statutory standards. Id. at 32-33 (citing Eagle Envtl. II, 884 A.2d at 880-81); OAG's Brief (as appellant) at 36.[24]

In response to the Commonwealth's appeal, the citizens request that we affirm the lower court's decision. To start, the citizens claim that Article I, Section 1 of the Pennsylvania Constitution guarantees an individual's rights " to acquire, possess and protect property and to use that property as the individual sees fit." Citizens' Brief (as appellee) at 8 (citing Appeal of Girsh, 437 Pa. 237, 263 A.2d 395, 397 n. 3 (1970)). This right, according to the citizens, is limited by the Commonwealth's police power. The citizens do not dispute that the General Assembly has the authority to preempt local laws, amend the Oil and Gas Act, or simply remove municipalities' zoning power entirely. But, the citizens argue, having the power does not equate to the conclusion that the exercise of the power in a particular instance is per se proper. According to the citizens, while the General Assembly may dissolve the municipalities' power to zone, the General Assembly may not remove the protections created by existing zoning districts only to replace them with a zoning scheme that is inconsistent with constitutional mandates generally imposed on any legislative zoning effort. Id. at 12-15. The citizens emphasize that the exercise of the police power to zone is limited by the Constitution. Thus, a zoning legislative enactment like Act 13 is constitutional only if it ensures that a use of property does not cause harm to neighboring property rights or interests, and it protects " the lives, health, morals, comfort and general welfare of the populace." Id. at 8, 15 (citing Realen, 838 A.2d at 728). According to the citizens, the purpose of zoning is to develop a comprehensive and orderly land use scheme that segregates incompatible uses, based on the unique characteristics of each community; in this sense, " [t]he police power to zone cannot be exercised in an unreasonable or arbitrary manner" but must balance costs and benefits in each community. Id. at 9-11, 15 (citing Village of Euclid v. Ambler Realty Co., 272 U.S. 365, 387-88, 47 S.Ct. 114, 71 L.Ed. 303 (1926); Realen, 838 A.2d at 729).

The citizens state that the General Assembly cannot justify a zoning action violative of these fundamental parameters by reference to a policy to promote oil and gas development in the Commonwealth. The interests implicated in zoning, the citizens assert, are distinct from, and more complex than, those implicated in the narrow arena of oil and gas development. Accordingly, an action that, when viewed in isolation, is perfectly acceptable to accomplish the resource utilization purposes of Act 13 may be unconstitutional from a zoning perspective. The citizens emphasize that Act 13 is a zoning act that must be assessed in accordance with constitutional standards applicable to all other zoning legislation. According to the citizens, Act 13 confers no benefits to the community sufficient to justify its disruptive effects, and the Commonwealth's blanket assertion that the statute has an appropriate purpose is insufficient to meet constitutional standards. Id. at 14-17.

By any measure, the citizens argue, Act 13 works a remarkable revolution in zoning

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in this Commonwealth. The Act introduces heavy-duty industrial uses— natural gas development and processing, including permission to store wastewater (a drilling by-product)— into all existing zoning districts as of right, including residential, agricultural, and commercial. The intrusion is made, according to the citizens, regardless of whether the district is suitable for industrial use, whether the industrial use is compatible with existing uses and expectations, and whether dictated accompanying setbacks are sufficient to protect the environmental health, safety, and welfare of residents in particular affected communities. The citizens describe the development process of shale drilling for natural gas:

Unconventional well sites are generally developed in different stages and are on average several acres in size. Initially, a road is constructed and a pad is cleared. The impact is typical of any a[sic] noisy, dusty construction site, and the process can take several months to complete. Upon completion of the pad, drilling generally entails twenty-four (24) hour operation of sizeable drilling rigs accompanied by numerous diesel engines to provide power to the site. There will also be a substantial amount of truck traffic to and from the drill site. Once completed, the well pads will include wellheads, condensate tanks, vapor destruction units with open flames, pipelines and metering stations. These are typically structures that vary tremendously in size, scale and appearance from dwellings or other buildings found in residential and commercial zoning districts. Compressor stations and processing plants are clearly industrial uses as they process raw materials into various products. Unlike well development, the intensity of activities remains constant.

Id. at 21 n.11. Natural gas extraction, the citizens continue, requires heavy truck traffic, open flames, workers living on-site, and the process unavoidably produces noise, odors, and harmful emissions, including volatile organic compounds and sulfur dioxide, a neurotoxin. Id. at 22, 25.

For example, one affidavit of record recounts the experience of a homeowner in a previously rural, non-industrialized area of Amwell Township, Washington County. See S. Taney Affidavit, 5/3/2012. The homeowner, a nurse, leased her mineral rights and drilling operations (three wells, a fracking fluid impoundment, and a drill cuttings pit) began approximately 1,500 feet from her home. Access to the drilling site occurred mainly via a dirt road running approximately fifteen feet from her residence. The homeowner describes that, during the initial construction process, the access road was used daily and continuously by heavy truck traffic, causing structural damage to her home's foundation, road collapse, as well as large amounts of dust and deterioration to the air quality; the gas company subsequently repaired the damage to her home, and widened and paved the access road to accommodate additional traffic. Moreover, and unsurprisingly, the 24-hour-a-day traffic caused significant noise pollution, which affected the homeowner's ability to enjoy her property.

Once drilling and fracking operations began, and over the next several years, the homeowner noticed significant degradation in the quality of the well water which had supplied her homestead and those of several neighbors with fresh and clean water during the century in which her family had owned the property. In the homeowner's words: " my well water began to stink like rotten eggs and garbage with a sulfur chemical smell[,] ... when running water to take a bath, my bathtub filled with black

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sediment and again smelled like rotten eggs." Id. at ¶¶ 12-13. The gas company gave the homeowner a " water buffalo" as a replacement water source.[25] Air quality also became degraded, beginning " to smell of rotten eggs, sulfur, and chemicals" and seeping into the home and the owner's belongings. Id. at ¶ 15. Several pets died as a result of their exposure to contaminated water. Finally, upon her physician's advice, the homeowner abandoned her family home because the exposure to the toxic water and air caused her and her children severe health problems such as constant and debilitating headaches, nosebleeds, nausea, difficulty and shortness of breath, skin rashes and lesions, bone and muscle pain, inability to concentrate, and severe fatigue. Id. at ¶¶ 16, 17.

Moreover, the citizens state, communities " have a reasonable concern over the impact on property values due to the perceived or real risk associated with living near industrial activity." Property values, according to the citizens, will decrease with the prospect of storing drilling wastewater " less than a football field's distance from ... homes," and the prospect of contamination of the soil, air, and water supply.[26] The citizens state that they " relied on the zoning ordinances in their respective municipalities to protect their investments in their homes and businesses, and to provide safe, healthy, and desirable places in which to live, work, raise families, and engage in recreational activities." Act 13's blunt " one size-fits-all" accommodation of the oil and gas industry, the citizens argue, will change the character of existing residential neighborhoods and affect planning for future orderly growth in municipalities with significant shale gas reserves, the very neighborhoods which zoning laws encouraged and currently protect. One aspect of the new law, for example, provides for setbacks of 300 feet from " existing structures," which does not account for currently undeveloped properties or large parcels, much less roads and property lines. In more sparsely-populated rural communities, the effect of Act 13 will be, according to the citizens, " unlimited drilling; drilling rigs and transportation of the same; flaring, including carcinogenic and hazardous emissions; damage to roads; an unbridled spider web of pipeline; installation, construction and placement of impoundment areas; compressor stations and processing plants; and unlimited hours of operation, all of which may take place in residentially zoned areas." The citizens conclude that, as a zoning regulation, Act 13 fails to meet the standards of Article I, Section 1 of the Pennsylvania Constitution, the Fourteenth Amendment of the U.S. Constitution, and the caselaw

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that interprets those respective constitutional provisions. Citizens' Brief (as ...


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