The June 10 letter is written by John M. Smith who was lead counsel on statewide cases that struck down what he said were similar attempts by the Legislature and agencies to eliminate constitutional safeguards and protections afforded to citizens and municipalities, including in Robinson v. Commonwealth and South Fayette, et al. v. Commonwealth.
Here is the text of the letter. The bold emphasis is his.
Dear Chairs Fiedler and Causer:
I am writing this letter in opposition to the General Assembly of Pennsylvania House Bill No. 502 Session of 2025.
House Bill 502 aims to accelerate siting decisions through the Governor's proposed "Lighting Plan" to cut "red tape" with the laudable goal of job creation.
Unfortunately, the "red tape" comes in the form of "cutting" constitutional protections required and enjoyed by Pennsylvania citizens that cannot be eliminated.
House Bill 502 is merely the latest industry attempt at eliminating local government oversight and processes that is synonymous with Act 13's efforts to do the same where the oil/gas industry sought and passed similar legislation.
In striking down Act 13 [of 2012] that removed local government's constitutional obligations and constitutional rights afforded to all Pennsylvania citizens, the Pennsylvania Supreme Court held, “[n]o principle of law permits us to suspend constitutional requirements for economic reasons, no matter how compelling those reasons may seem." Robinson v. Commonwealth. [Read more here]
"The legislature may certainly determine what exemptions it chooses to grant, but only within the bounds of the Constitution." Mesivtah Eitz Chaim of Bobov, Inc. v. Pike County. "Good intentions do not excuse non-compliance with the Constitution." Id.
It is likely most Legislators are unaware of the Bill's unconstitutional terms and the unconstitutional results that will be visited on the citizens of the Commonwealth if passed.
While I serve as a Solicitor for municipalities and was lead counsel on statewide cases that struck down similar attempts by the Pennsylvania Legislature and Agencies to eliminate constitutional safeguards and protections afforded to citizens and municipalities, including Robinson v. Commonwealth and South Fayette, et al. v. Commonwealth, I am familiar with the propriety of the legislation at hand.
I am writing this letter on my own behalf as an Attorney and citizen of this Commonwealth to express my most adamant opposition to House Bill 502.
In Robinson v. Commonwealth, the Pennsylvania Supreme Court declared various activities set forth in Act 13, unconstitutional relative to local governments and citizen's rights, and in South Fayette, et al. v. Commonwealth, an en banc Pennsylvania Commonwealth Court halted the tolling of 9 bridges in the Commonwealth in part on a legislative violation of the "Non-Delegation Doctrine" where government rights were wrongfully delegated to an executive branch agency.
House Bill 502's attempt at eliminating local zoning protections, control, processes, municipal oversight and citizen voices is such a departure from existing Pennsylvania law and constitutional protections that I cannot fathom that it has reached this level of consideration.
The Bill itself fails to adequately define what actual uses fall within its purview that would instantly run afoul of the "void for vagueness" doctrine that is derived from the Fifth and Fourteenth Amendments to the United States Constitution.
In order to ensure that this letter does not go on at great length, I will limit my comments and concerns to the most egregious violations of existing United States and Pennsylvania constitutional protections.
Pennsylvania municipalities have unique towns, topography, populations and existing land uses that vary greatly.
Most municipalities have utilized their "police power" to enact zoning regulations, zoning districts and land use approval mechanisms that ensure compliance with the safeguards and fundamental rights provided to their citizens in the United States and Pennsylvania Constitutions.
The zoning district is the central feature of a zoning scheme.
The United States Supreme Court has held that proper zoning is completed by the creation of "districts in which only compatible uses are allowed and incompatible uses are excluded.” City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33 (1995).
A significant factor in determining if a zoning restriction is reasonable is whether the particular use is "consistent with the stated purpose of the zoning district." Hock v. Board of Supervisors of Mount Pleasant Township, 622 A.2d 431, 434 (Pa. Cmwlth. 1993).
House Bill 502 seeks to set aside local government's proper use of its police power concerns and zoning oversight to allow undefined industrial type uses anywhere outside of a residential zoning district without any defined criteria an applicant would have to meet with a mere "consultation" with municipalities, while at the same time eliminating the municipalities environmental and zoning protections currently in place that serve to protect citizens' constitutional rights.
The Bill is an improper use of the Commonwealth's police power as it ignores the tenets of existing zoning safeguards and uniform application of the law, and is not done in a manner consistent with local demographics and environmental concerns.
As a result, House Bill 502 violates Article I, Section 1 of the Pennsylvania Constitution and citizens' substantive due process rights found in the 14th Amendment to the United States Constitution.
The legislation also strips and denies neighboring landowners rights to object as "parties in opposition", providing for only "public comment" in a purported venue potentially far removed from local municipal buildings violating citizen's 14th Amendment rights to due process as the local government venue is not mandated.
The "Reliable Energy Siting and Electric Transition (RESET)” board, who will judge credibility and evidence and ultimately approve or deny an application, need to not even show up to this undetermined hearing location by appointing an “individual” to entertain testimony.
The Bill raises more questions than it answers, including what burden do the objecting landowners or municipalities have to prove their case?
What criteria does the applicant have to meet to receive approval?
Without knowing the criteria, how can an objecting landowner or municipality make adequate "public comment" as to why the use should be denied?
Approval is made based on compliance with state and federal law, none of which are identified, but the Board will not entertain compliance with local laws including setbacks and zoning districts and their constitutional underpinning that applies to all other land use Applicants.
In land use applications, municipalities are automatic parties to hearings by statute, and objectors or aggrieved parties can bring any and all appeals to the County Court of Common Pleas and would need to demonstrate to an elected trial judge that the given municipal body “abused its discretion" or "committed an error of law" in order to attempt to overturn a Board's decision.
By contrast, any appeal from the Board created by House Bill 502 will be to the Environmental Hearing Board (“EHB”), that has no background in zoning and the objectors' burden has been heightened to an "arbitrary and capricious" standard.
Even if the EHB finds in favor of an objector, it sends the matter back to the Board to be remedied, denying further appellate review, changing the judicial process and appellate review applicable to all other citizens and land use applicants in Pennsylvania, denying adequate due process.
Moreover, House Bill 502 violates the "Non-Delegation Doctrine" and "Separation of Powers" principles as it proposes to take zoning and land use approval rights away from the local government who sit as legislators when it determines what land uses are compatible in a given zoning district and the criteria it must demonstrate compliance with by ordinance.
Local government elected officials or Zoning Hearing Board members also sit in their capacity as a quasi- judicial body when determining the propriety of land use applications by approving or denying the proposed use following a local public hearing.
House Bill 502 turns these local functions required by the Pennsylvania Municipalities Planning Code, applicable to all local governments, citizens and applicants alike, over to an unelected "executive branch" agency, not responsive to, or to be held accountable by citizen elective choices.
This proposed Board is to be comprised of non- elected citizens likely not related to or having any understanding of the affected municipality and are to be called upon to purposefully render decisions contrary to comprehensive plans enacted; contrary to existing zoning districts and zoning laws; contrary to the government's Subdivision and Land Development Ordinances and make police power decisions that will likely run afoul of Article I, Section 1 of the Pennsylvania Constitution.
The lack of guiding principles as to how this new Board is to judge applicant submissions result in the Board also being called upon to make policy judgments otherwise reserved for the General Assembly, in violation of Article II, Section 1 of the Pennsylvania Constitution.
Even if the Legislature of this Commonwealth desires to bargain away municipal and citizen's fundamental and constitutional rights and obligations, House Bill 502 provides no required adequate standards which will guide and restrain the exercise of delegated local government functions, to protect against arbitrary or ad hoc decision making by the proposed Board.
While local governments have defined criteria that an applicant must meet in order to be granted land use approvals, inclusive of setbacks, lot coverage, sound issues and compliance with a given zoning district, as a few examples which were necessarily enacted solely to protect the health, safety and welfare of its citizens, House Bill 502 provides and requires compliance with none of these criteria and in turn violates the protections local governments have provided to all citizens.
In fact, House Bill 502, intentionally refuses to categorize the actual land uses contained within in the bill itself.
In deciding to create the RESET board that serves to usurp local government functions, inclusive of its laws, ordinance approval processes and citizens' due process rights, House Bill 502 also serves to violate Article III, Section 32 of the Pennsylvania Constitution. Article III, Section 32 of the Pennsylvania Constitution has been likened to the Equal Protection clause of the United States Constitution as it "has been recognized as implicating the principle 'that like persons in like circumstances should be treated similarly by the sovereign””. Pennsylvania Turnpike Commission v. Commonwealth, 899 A.2d 1085, 1094 (Pa. 2006).
Article III, Section 32 was designed to combat "the evil [of] interference of the legislature with local affairs without consulting the localities and granting of special privileges and exemptions to individuals or favored localities." Harrisburg School District v. Hickok, 781 A.2d 221, 227 (Pa. Cmwlth. 2001).
House Bill 502 serves to circumvent existing zoning districts, comprehensive plans, zoning ordinances, setbacks, required criteria and subdivision and land development ordinances, approved processes and citizens' due process rights, all while violating the constitutional underpinnings of those rules in the process.
Eliminating objections, challenges, municipal hearings, laws, zoning districts, compatible land uses, access to hearings and appeal rights to the County Court of Common Pleas should not be the unfortunate casualty of any legislation. Land use legislation is designed for one purpose, "to protect the health, safety and welfare of the citizens", not to detract from it.
As the Pennsylvania Commonwealth Court held in striking down Act 13 as the law violated municipal comprehensive plans for growth and development it "violates due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications." House Bill 502 is equally problematic.
Lastly, in Robinson v. Commonwealth, the Pennsylvania Supreme Court also had occasion to visit the legislative attempt to ignore constitutional safeguards and fundamental rights found in Article I, Section 27 of the Pennsylvania Constitution.
The Pennsylvania Supreme Court in finding that "Act 13" was unconstitutional, held that "constitutional commands regarding municipalities obligations and duties to their citizens cannot be abrogated by statute." Robinson v. Commonwealth.
"No principle of law permits us to suspend constitutional requirements for economic reasons, no matter how compelling those reasons may seem."
"Moreover, the General Assembly has no authority to remove a political subdivision's implicitly necessary authority to carry into effect constitutional duties." Id.
As local governments have obligations under all constitutional amendments and their citizens have fundamental rights, including Article I, Section 1; Article I, Section 27 and Article III, Section 32 of the Pennsylvania Constitution as well as substantive and procedural due process obligations under the 14th Amendment to the United States Constitution, House Bill 502's attempt to eliminate local government's "necessary authority" to carry into effect constitutional duties, will serve to violate the law.
House Bill 502's attempt of eliminating the rights and obligations of municipalities to "undo existing protections of the environment in their localities...does not encompass such authority to so fundamentally disrupt these expectations respecting the environment." Id. at 978.
“[T]he General Assembly transgressed its delegated police powers, which, while broad and flexible, are nevertheless, limited by constitutional commands, including the Environmental Rights Amendment." Id.
House Bill 502 seeks to violate zoning districts or to eliminate local government constitutional obligations under the Environmental Rights Amendment.
For these reasons, I respectfully request that this legally untenable and vague House Bill 502 not be advanced out of Committee or ever enacted into law in order to preserve the constitutional rights and protections required and provided to Pennsylvania citizens and that mandatory constitutional functions and obligations be maintained by local governments.
Click Here for a copy of the letter.
(Photos: top- Range Resources Augustine Drill Pad in Cecil Township; Augustine Drill Pad showing scale of operation; bottom- Map of Shale gas wells (red dots), conventional oil and gas wells (blue/green dots) in Cecil Township (DEP Oil & Gas Program); 523 feet from nearest house; Well pad gas flare from bedroom window near Augustine well pad (WTAE). Other photos Courtesy of The Energy Age Blog.)
Resource Links:
-- Rise Of The Machines: Senate, House Members Express Concern That Demand For Power To Run Computers Is Impacting The Price And Availability Of Electricity For ‘Ordinary People’ [5.12.25]
-- PUC Invites Stakeholder Comments On The Issue Of The Adequacy Of Electricity Supplies In Pennsylvania [Background On Issue] [PaEN]
-- 30 Stakeholder Comments Received By PUC On Adequacy Of Electricity Supplies In Pennsylvania; Increasing Natural Gas Power Plant Reliability To 90-95% Would Mean No Imminent Capacity Problem [PaEN]
-- PA Senate Republicans Vote To Punish Communities Taking Steps To Protect Their Residents From Health, Environmental Impacts Of Shale Gas Drilling [PaEN]
PA Oil & Gas Industry Public Notice Dashboards:
-- PA Oil & Gas Industrial Facilities: Permit Notices, Opportunities To Comment - June 14 [PaEN]
-- DEP Posted 96 Pages Of Permit-Related Notices In June 14 PA Bulletin [PaEN]
Related Articles This Week:
-- DEP’s Oil & Gas Advisory Board Meets June 25 On Well Development Pipelines; Wastewater Management Practices; Future Well Plugging Funding Needs [PaEN]
-- PA Senate Republicans Pass Bill To Roll Back Environmental, Health, Safety Regulations By Doing Nothing And Avoiding Accountability [PaEN]
-- Delaware River Frack Ban Coalition Launch Initiative To Defend The Delaware River Watershed From Oil & Gas Fracking [PaEN]
-- Plum Borough Zoning Hearing Board Voted To Deny Penneco Environmental's Application For Another Oil & Gas Wastewater Injection Well In Allegheny County [PaEN]
-- Protect PT, Partners To Host June 25 Webinar: 5 Years Later - A Progress Report On PA's Grand Jury Report On Fracking [PaEN]
-- $100/Well Bounty Established For Previously Unknown Oil & Gas Wells Abandoned By Conventional Well Owners Under New Program Funded By Oil Region Alliance; 4 Penn State Extension Workshops Set [PaEN]
-- 25 Environmental Groups; Local Government Associations Oppose House Bill To Fast Track Large-Scale Energy Generation, Storage Projects Proposed By Gov. Shapiro [PaEN]
-- Lead Counsel On Court Cases Striking Down Provisions In Act 13 To Preempt Local Regulation Of Oil & Gas Operations Raises Concerns About Proposed Legislation Establishing A RESET Board To Site Large Energy Projects [PaEN]
-- Gov. Shapiro Announces Amazon Plans To Invest $20 Billion In Pennsylvania For A.I. Data Center Infrastructure; Amazon Told PUC It Has Net-Zero Carbon Emissions Goal By 2040 [PaEN]
-- DEP Invites Comments On Air Quality Permit For 72 - 2.5 MW Diesel-Fired Emergency Generators At New Amazon Data Services Data Center In Bucks County [PaEN]
-- PA Trout Unlimited, 17 Other Environmental, Conservation Organizations Expressed Opposition To Proposed DEP Changes To Spill Reporting Requirements [PaEN]
-- Republican Sen. Hutchinson Introduces Bill To Abolish DEP Climate Change, Recycling Fund, Coastal Zone Advisory Committees [PaEN]
NewsClips:
-- Rep. Vitali: PA House Environmental Committee Examines Problem Of Abandoned Oil & Gas Wells
-- The Center Square: Higher Plugging Bonds Floated To Help The State’s Abandoned Conventional Well Problem
-- MCall: Is Ban On Fracking In Delaware Watershed At Risk? Advocates Put Out A Call To Action
-- Capital & Main - Audrey Carleton: Pennsylvania Has Failed Environmental Justice Communities For Years; A New Bill Could Change That
-- Inquirer/Capital & Main- Audrey Carleton: Pennsylvania Has Failed Environmental Justice Communities For Years, A New Bill Could Change That
-- Beaver Times/Inside Climate News- Jon Hurdle: PA Fracking Company Surrenders Water Permits, Can’t Get Enough Water Out Of Big Sewickley Creek In Beaver County
-- TribLive: President Coming To Pittsburgh For PA US Senator McCormick’s July 15 PA Energy & Innovation Summit
-- Sen. McCormick: President Coming To July 15 PA Energy Innovation Summit In Pittsburgh
-- The Allegheny Front: Pittsburgh 2030 District Buildings Reduce Carbon Emissions By 50%
-- Observer-Reporter Guest Essay: A Future Fueled By Washington County - By Electra Janis, Washington County Commissioner [Hydrogen Hub]
-- Marcellus Shale Gas Coalition: Read The Letters Rejected By The Post-Gazette, Inquirer From The Shale Gas Industry
-- Wall Street Journal: US Electric Bills Headed Higher: Forecast Of Hotter-Than-Normal Summer, More Expensive Natural Gas Mean Pricier Power
-- Utility Dive: A.I. Data Centers Could Overwhelm The Electric Grid, Unless They Are Required To Run Their Facilities On New Power Sources, Market Analytics Says
-- Reuters: Data Center Demand To Push US Power Use To Record Highs In 2025-26, EIA Says
-- EarthJustice: 12 Groups File Lawsuit Challenging President Issued Unlawful Exemptions From Mercury, Arsenic Standards For 68 Coal Plants By Email
[Posted: June 12, 2025] PA Environment Digest
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