Arguing that the ruling “runs roughshod” over the principle that the Pennsylvania Supreme Court does not sit as a trier of fact, the state Public Utility Commission and Department of Environmental Protection have petitioned the justices for reconsideration of their decision to strike down as unconstitutional amendments to the state’s Oil and Gas Act requiring municipalities to adopt uniform zoning ordinances that would allow drilling in all zoning districts.

“As this court has emphasized, fact-finding is ‘a task for a trial court,’ and an ‘area of the judicial process’ that this court ‘would never invade,’” the agencies said in their petition, quoting language from the 1969 Supreme Court case Reed v. Universal C.I.T. Credit. “Because the court for the first time has ‘invade[d] that area of the judicial process’ in this case, reconsideration is warranted.”

The high court’s ruling, issued Dec. 19, 2013, overturned Section 3304 of 58 Pa. C.S., known as Act 13 of 2012, and affirmed the decision of a deeply split en banc Commonwealth Court panel. The lower court found last July that requiring municipalities to bring their zoning ordinances into compliance with Act 13 means forcing local governments to violate substantive due process by allowing incompatible uses in their districts.

While four out of six justices in Robinson Township v. Commonwealth found Section 3304 to be unconstitutional, only one of them, Justice Max Baer, based his finding on due process grounds.

The other three justices who agreed to toss out the zoning mandate—Chief Justice Ronald D. Castille and Justices Debra Todd and Seamus P. McCaffery—ruled that it violated the Environmental Rights Amendment to the state constitution.

Justice Correale F. Stevens did not participate in the consideration or decision of the case.

Article I, Section 27 of the state constitution states that the legislature has an obligation to restrain actions of private parties that are likely to harm the environment and degrade public natural resources.

In a plurality opinion, Castille said the state “fails to respond in any meaningful way to the citizens’ claims that Act 13 falls far short of providing adequate protection to existing environmental and habitability features of neighborhoods in which they have established homes, schools, businesses that produce or sell food and provide health care, and other ventures, which ensure a quality of human life.”

Baer, however, said in a concurring opinion that he believed the plaintiffs’ argument that Act 13′s zoning requirements violated their substantive due process rights to be “better developed and a narrower avenue to resolve this appeal.”

Justice Thomas G. Saylor issued a dissenting opinion, which Justice J. Michael Eakin joined, saying he would uphold the Act 13 amendments in recognition of “the authority of the General Assembly to make basic, rational policy choices—through the democratic process—that balance the various and potentially conflicting purposes of Act 13.”

Eakin filed his own dissenting opinion, echoing Saylor’s point.

The agencies mainly focused on Castille’s plurality opinion in their petition, arguing Castille’s findings that natural gas drilling in Pennsylvania “’will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse’” constituted “sweeping factual conclusions” improperly made without a factual hearing at the lower court level.

“Because [the] Commonwealth Court neither conducted a factual hearing nor issued factual findings, however, none of these broad factual statements finds support in the proceedings below,” the agencies said in their petition. “This court should follow its own established precedent and remand to Commonwealth Court for development of facts, application of this court’s newly pronounced standards to the facts found by the Commonwealth Court, and a final determination whether Act 13 violates Section 27 based on a full record and formal factual findings.”