Widener Law Professor’s Work Cited in Major Pennsylvania Supreme Court Opinion

The Pennsylvania Supreme Court has extensively quoted the work of Distinguished Law Professor John C. Dernbach in a high-profile decision that significantly affects the state’s booming oil and gas industry.

The case, Robinson Township v. Commonwealth of Pennsylvania, decided Dec. 19, 2014 cites Dernbach in seven instances throughout the 162-page plurality decision. The court ruled that significant parts of Act 13, Pennsylvania’s Marcellus Shale drilling law, are unconstitutional.

“It’s a very important decision,” Dernbach said, after reading the court’s four opinions, including the plurality opinion by three justices, another by a fourth justice who concurred under a different line of legal reasoning, and two separate dissents by other justices. Two more justices did not participate in the decision. “I am also gratified that members of the court found my work helpful.”

The court held unconstitutional significant parts of Act 13, a 2012 law enacted to foster gas extraction from Pennsylvania’s Marcellus Shale reserves. Several parts of the law limited local governments’ abilities to review and approve gas operations under their planning and zoning laws. Another part of the law allowed the Department of Environmental Protection to waive mandatory distance limits between gas operations and water bodies like streams and wetlands.

The three-justice plurality opinion, written by Chief Justice Ronald E. Castille and joined by Justice Debra McCloskey Todd and Seamus P. McCaffery, held these provisions unconstitutional under Article I, section 27 of the Pennsylvania Constitution. Justice Max Baer concurred under a different line of legal reasoning, and would have struck the law as violative of substantive due process.

The opinion cited multiple Dernbach publications, including two articles published in 1999 in the Dickinson Law Review. They include “Taking the Pennsylvania Constitution Seriously When it Protects the Environment: Part I – An Interpretative Framework for Article I, Section 27,” and “Taking the Pennsylvania Constitution Seriously When it Protects the Environment: Part II – Environmental Rights and Public Trust.” The plurality also cited a chapter he authored for “The Pennsylvania Constitution: A Treatise on Rights and Liberties,” published in 2004.

Dernbach said the implications of the decision will be felt for years, or even decades. He was impressed with the depth of legal reasoning that went into the opinion. “The plurality treats Article I, Section 27 as actual constitutional law, and treats its text seriously,” he said. “It begins to free the amendment from decades of judge-made limits on its meaning and applicability.”

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