Reconciling Preemption Issues Between Act 13 and the Storm Water Management Act

Abstract

The recent passage of the Act 13 amendments to the Oil & Gas Act (Act 13) has created a fair amount of debate and at least one legal challenge. At the time of this writing, seven municipalities have challenged portions of the amendments, stating that some sections of Act 13 unconstitutionally override local zoning ordinances. On April 11, 2012, Senior Judge Keith Quigley for the Commonwealth Court issued a preliminary injunction regarding section 33 of Act 13 for a period of 120 days. Interestingly, a possible preemption issue may exist as municipalities, industry and the courts attempt to understand and reconcile sections 3302-3304 of Act 13 with other environmental statutes, such as the Storm Water Management Act (SWMA). This article argues that the early consensus that Act 13 preempts all local ordinances may be premature particularly when examining sections 3302-3304 of Act 13 and the SWMA. This article examines whether an actual conflict exists and whether Act 13 preempts local ordinances created pursuant to the authority provided for in the SWMA.