In a recent en banc decision by the Pennsylvania Commonwealth Court, the court upheld a local ordinance that authorized the development of unconventional oil and gas wells in areas zoned residential and agricultural against a challenge by residents asserting that the ordinance violated the Pennsylvania Constitution’s Environmental Rights Amendment. This case marked one of the first decisions since the Pennsylvania Supreme Court’s 2017 decision in Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania that changed the standard for weighing environmental challenges asserted under the Environmental Rights Amendment. This case is likely the first of many cases that will test the outer bounds of the Pennsylvania Supreme Court’s new standard for evaluating and reviewing governmental actions that implicate environmental challenges. The 5-2 decision was subject to two written dissents, which increases the possibility of review by the Pennsylvania Supreme Court.
In the case, captioned Frederick v. Allegheny Township Zoning Hearing Board, No. 2295 CD 2015, a group of Allegheny Township residents challenged a 2010 zoning ordinance that allowed unconventional oil and gas drilling in all zoning districts within the municipality. In 2014, a land use permit was issued under the zoning ordinance to CNX Gas Co. to develop property located with the township’s R-2 Agricultural/Residential Zoning District. The residents, all of whom lived near the property to be developed, asserted several challenges against the zoning ordinance, including that it was an impermissible spot zoning that violated substantive due process, that the ordinance violated the Pennsylvania Municipalities Planning Code, and relevant here, that the ordinance did not adequately comport with the Environmental Rights Amendment in Article I, Section 27 of the Pennsylvania Constitution. The residents first challenged the ordinance at the Zoning Hearing Board in early 2015. After hearing expert testimony from all sides, the zoning board rejected all of the residents’ challenges to the ordinance on various grounds. The zoning board decision was appealed to the trial court, which rejected the residents’ appeal without taking or considering any additional evidence. An appeal to the Commonwealth Court followed.
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