Pennsylvania Supreme Court Rules Again on Municipal Zoning Ordinance for Oil and Gas Development
On August 3, 2018, the Pennsylvania Supreme Court granted the petition for allowance of appeal filed by certain environmental groups challenging the Commonwealth Court’s decision to uphold a municipal ordinance allowing natural gas drilling in a mixed residential and agricultural (“R-AG”) zone. See Delaware Riverkeeper Network, et al., v. Middlesex Township Zoning Hearing Board, No. 270 WAL 2017. In doing so, the Supreme Court vacated and remanded the lower court’s June 2, 2017 decision, finding that it had relied on a now-overruled environmental balancing test to decide that the municipal ordinance passed muster under Section I, Article 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment (“ERA”). Specifically, the Supreme Court directed the lower court to reconsider its decision in light of the Court’s more recent decisions in Pa. Envtl. Def. Fund. v. Commonwealth, 161 A.3d 911 (Pa. 2017), and Gorsline v. Bd. of Sup. of Fairfield Twp., --- A.3d---, 2018 WL 2448803 (Pa. 2018). The Supreme Court also directed the lower court consider the amendments contained in Middlesex Township’s Ordinance 127, which now expressly included gas well development in the R-AG zones.