Robinson Township v. Commonwealth

DISSENTING OPINION

By Judge BROBSON.

I join in parts I through III of the majority opinion. I respectfully disagree, however, with the majority’s conclusion in Part IV.B and the related provisions in its order enjoining application and enforcement of Sections 3305 through 3309 of what is commonly referred to as Act 13, 58 Pa.C.S. §§ 3305-3309, in their entirety.

If I read the majority’s analysis in Part IV.A of its opinion correctly, the majority holds that Section 3302 of Act 13, 58 Pa. C.S. § 3302, with the exception of the last sentence in that section, is constitutional and, therefore, remains enforceable as to Chapter 32 of Act 13. This operative statutory language, preserved by the majority’s opinion and order, provides:

Except with respect to local ordinances adopted pursuant to the MPC and the act of October 4, 1978 (P.L. 851, No. 166), known as the Flood Plain Management Act, all local ordinances purporting to regulate oil and gas operations regulated by Chapter 32 (relating to development) are hereby superseded. No local ordinance adopted pursuant to the MPC or the Flood Plain Management Act shall contain provisions which impose conditions, requirements or limitations on the same features of oil and gas operations regulated by Chapter 32 or that accomplish the same purposes as set forth in Chapter 32.

58 Pa.C.S. § 3302. By enacting this statutory language, along with Chapter 32 of Act 13, the General Assembly has preempted the field of regulating the “how” of oil and gas operations within the Commonwealth.1 See Huntley & Huntley, Inc. v. Borough Council of Borough of Oakmont, 600 Pa. 207, 964 A.2d 855, 862-63 (2009).

Notwithstanding its holding that Section 3302 as it relates to Chapter 32 remains effective and enforceable, the majority holds that the legislatively created procedures and remedies in Sections 3305 through 3309 of Act 13, 58 Pa.C.S. §§ 3305-3309, for review of and/or to challenge local ordinances that violate, inter alia, Section 3302 and, by extension Chapter 32 of Act 13, are unenforceable in toto. (See Maj. Op. at 1121-22.) The majority reasons that the General Assembly’s decision to enact these procedures was built upon the continued constitutionality and thus enforceability of Chapter 33. With the Supreme Court’s mandate in Robinson Township v. Commonwealth, — Pa.-, 83 A.3d 901 (2013) (Robinson Twp. II), declaring all substantive provisions contained in Chapter 33 of Act 13 unconstitutional and thus unenforceable, the majority concludes that the continued availability of the procedures and remedies for redress of ordinances that violate Chapter 32 would no longer be consistent with the General Assembly’s intent when it enacted those procedures and remedies. Accord*1124ingly, the majority concludes that the procedures and remedies in Sections 3805 through 3309 are not severable from the unconstitutional Sections 3303 and 3304 of Act 13 and, therefore, are no longer available remedies for violations of Section 3302. I respectfully disagree.

As the majority points out, Section 1925 of the Statutory Construction Act of 1972, regarding severability, provides:

The provisions of every statute shall be severable. If any provision of any statute or the application thereof to any person or circumstance is held invalid, the remainder of the statute, and the application of such provision to other persons or circumstances, shall not be affected thereby, unless the court finds that the valid provisions of the statute are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one; or unless the court finds that the remaining valid provisions, standing alone, are incomplete and are incapable of being executed in accordance with the legislative intent.

1 Pa.C.S. § 1925 (emphasis added). In Robinson Twp. II, the Pennsylvania Supreme Court noted that this section creates a presumption of severability. Robinson Twp. II, 83 A.3d at 998. Unlike the majority, I do not perceive sufficient evidence of legislative intent within the express statutory language to override the presumption that Sections 3305 through 3309 are severable from invalid Sections 3303 and 3304. To the contrary, the language that the General Assembly chose in Sections 3305 through 3309 supports the presumption.

The remedial provisions in Sections 3305 through 3309 of Act 13 are available in three distinct situations. The first is where a local ordinance may violate the Municipalities Planning Code.2 The second is where a local ordinance may violate Chapter 33, which includes the severed Sections 3303 and 3304 as well as the remaining portion of Section 3302 of Act 13. And the third is where a local ordinance may violate Chapter 32 of Act 13. See Sections 3305(a)(1), (b)(1); 3306(1); 3308. Accordingly, the General Assembly decided that the procedures and remedies in Sections 3305 through 3309 would be available in each of three distinct circumstances. Unlike the majority, I am hard-pressed to conclude from the statutory language an intent by the General Assembly that links the availability of these remedial provisions in toto to the validity of two sections within Chapter 33 of Act 13— i.e., a subset of only one of the three situations where the procedures and remedies are expressly available. I simply do not find sufficient evidence within this language to override the presumption of sev-erability.

Unlike the majority, because the provisions in Act 13 that preempt the field with respect to the “how” of oil and gas operations remain effective, including the portion of Section 3302 that prohibits municipalities from entering into this field though local legislation, Sections 3305 through 3309 of Act 13 still have efficacy and are severable from the unconstitutional provisions of Act 13.

. Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§ 10701-10713.