On July 26, 2012, the Commonwealth Court of Pennsylvania overturned a Pennsylvania statute preempting the right of local jurisdictions to impose land use restrictions on hydraulic fracturing, or “fracking,” within their boundaries. Unlike courts in the States of Ohio and Colorado, the court in Robinson Township v. Commonwealth of Pennsylvania, et al., 2012 WL 3030277 (2012) held that the Pennsylvania statute violates the “basic precept that ‘land use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded.’” Id. at 15, quoting City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33 (1995). Fracking involves the high pressure injection of water and sand carrying certain chemicals into rocks in which is concealed deposits of oil and gas. Residents near fracking sites have complained of, among other things, pollution of the underground water supply, and increasing instability and subsidence of structures undermined by the process. Supporters of the Pennsylvania law claimed that it provides the uniformity of regulation necessary for the successful continuation of Pennsylvania’s relatively new and profitable fracking industry. Critics, however, take the position that removing local restrictions on the fracking would be to undermine decades of rational development, and open the door to the “pig in the parlor” to which the Supreme Court referred in upholding local zoning originally in Euclid v. Ambler, 272 U.S. 365 (1926).
The implication of these differences ranges far beyond Pennsylvania, because, among other reasons, the positions taken over local regulation of fracking do not differ notably from those taken with respect to local regulation of airport impacts.
Initially, where local regulation of airports was at issue, aviation interests, like the oil and gas interests in Pennsylvania, claimed that Interstate Commerce was being damaged by a patchwork of local regulation of airport noise and other impacts. Local authorities responded by calling upon the long tradition of local control of land use within their jurisdictions, including the use of the land by airports. In response, the United States Supreme Court in City of Burbank v. Lockheed Air Terminal, 411 U.S. 624 (1973) found that there was a need for “a uniform and exclusive system of federal regulation,” Id. at 638-639, to protect Interstate Commerce.
Despite this benchmark, the court in Burbank, as well as later courts, also upheld a local airport proprietor’s right to impose reasonable, nondiscriminatory regulation on noise and land use to protect itself from liability for adverse noise and safety impacts. That right was only abrogated 17 years later, not by the Supreme Court, but by Congress’ passage of the Airport Noise and Capacity Act, 49 U.S.C. § 47521, et seq., which effectively preempted any action that might be taken by local jurisdictions or airport sponsors to control the impacts of airports.
The Pennsylvania court’s decision on fracking in Pennsylvania may face the same fate. If the Pennsylvania Appellate Court’s decision upholding local zoning withstands the scrutiny of the Pennsylvania State Supreme Court, the potential difference of that high court’s opinion with those of other state high courts will open the way to the United States Supreme Court, and, ultimately, for Congressional intervention, either of which may have the unintended consequence of sealing the fate of local regulation of land use throughout the United States.