You can't blame Gov. Tom Corbett, and the executives of the Marcellus Shale industry, if they seemed a little stunned last week. They're only used to the ground shifting beneath other people's feet.
And they weren't the only ones surprised by the state Supreme Court's ruling on Dec. 19. It's not often a judge takes our right to clean air as seriously as our right to carry a gun.
By a 4-2 majority, the court scrapped major provisions of Act 13, the state law governing drilling for natural gas in the Marcellus Shale. In catering to gas drillers, the justices ruled, Republican lawmakers had sacrificed the rights of communities. As Justice Max Baer put it, "Act 13 makes it easier for Chevron to establish a drilling rig in the middle of a corn field than [for] a church to build a small ten-pew worship space in the same field."
The court's lead opinion, written by Chief Justice Ronald Castille, argued that Act 13 left local governments — whose zoning laws ordinarily allow them to place boundaries on industrial activity — all but powerless. "[F]ew could seriously dispute how remarkable a revolution is worked by this legislation," he wrote.
Castille could have stopped there: A lower court had already ruled that Act 13 violated the rights of local municipalities. But along with justices Seamus McCaffery and Deborah McCloskey Todd, Castille went further, arguing that Act 13 violated the state's Environmental Rights Amendment.
Voters ratified that amendment — by a 4-to-1 margin — in 1971. As a result, Article I, Section 27 of the state constitution asserts that "[t]he people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment."
Castille noted that amendment passed after decades of "shortsighted exploitation of [Pennsylvania's] bounteous environment," citing catastrophes like the Donora air-pollution disaster. And history could repeat itself, he warned: "By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect of the environment, on the people, their children, and future generations."
All this in an opinion authored by a Republican.
In response, Corbett mumbled something about "job creators," while the Marcellus Shale Coalition lamented a "missed opportunity." Others will cry "judicial activism": Dissenting Justice Thomas Saylor argued that "In a democratic system of government, divisive political controversies [should be] resolved through the political process," not by judges "substituting their own policy preferences."
Ironically, though, Castille may actually have a better grasp on the public's will than the legislators who are supposed to carry it out.In October, a Mercyhurst College poll found that Pennsylvania voters favored additional regulations on gas drilling by 3-to-1 margins. When asked if "the potential benefits of fracking ... are worth the potential risks" to human health and the environment, a plurality of voters say "no."
Pennsylvania's gas drillers are dug in now, literally and figuratively. One ruling won't dislodge them. And though barred from bullying local officials outright, Harrisburg may choose more subtle forms of extortion. Lawmakers could, for example, decide to share drilling-tax revenue only with municipalities whose zoning rules comply with the gas industry's wishes.
In the long run, meanwhile, Castille's reliance on the Environmental Rights Amendment may have little legal impact. That part of his ruling was backed only by three of the court's six judges: While Baer agreed to toss Act 13's key provisions, he didn't cite the amendment as a basis for doing so. Since Castille's reasoning didn't earn an outright majority on the court, its ability to set precedent for future rulings may be muted.
But court opinions can reshape the political landscape. Before last week, fracktivists had been fighting a losing battle against Allegheny County Executive Rich Fitzgerald's plan to drill in county parks. Now they're describing themselves as "elated," "excited," and "amazed."
No wonder. For years, they've stood out in the rain and snow, waving signs emblazoned with the Environmental Rights Amendment outside gas-drilling conventions. They did so on the assumption that the amendment wasn't just empty rhetoric, and that what's written in the constitution actually matters. They clung to that belief even as gas-industry execs strolled past with a smirk.
Today, the lobbyists aren't the ones smiling.