Pennsylvania Attorney General Linda Kelly and lawyers representing several state agencies have filed briefs with the state Supreme Court, arguing that an appellate court erred when it said portions of Act 13, the state's new omnibus Marcellus Shale law, were unconstitutional.
"This is a case of the tail wagging the dog," Kelly said in her filing. "For more than 300 years, Pennsylvania's General Assembly has been the primary political body vested with the authority to establish policy for the Commonwealth and its citizens. However, the Commonwealth Court's decision turns the established framework for our republican system of government...on its head by making the rationally based determination of the democratically elected legislature subservient to the zoning decisions and zoning plans of local governments."
On July 26 the Commonwealth Court ruled 4-3 that Act 13's zoning restrictions were unconstitutional on the grounds that they violate municipalities' right to substantive due process (see NGI, July 30). The court also said the law violated the constitutional right to clean air and water, and said the state Department of Environmental Protection's (DEP) ability to waive setback requirements was also unconstitutional.
In a separate filing, attorneys for the DEP and the state Public Utility Commission (PUC) said Act 13 was a legitimate exercise of the legislature's broad police powers and its ability to retract municipal powers. Five of the seven parties designated as amicus curiae in the case -- the Pennsylvania Independent Oil and Gas Association (PIOGA), the Marcellus Shale Coalition, Chesapeake Appalachia LLC, MarkWest Liberty Midstream & Resources LLC, Penneco Oil Co. Inc. -- also submitted a brief in support of the appellants.
Kevin Moody, general counsel for PIOGA, told NGI a date has not been set for oral arguments in the case -- Robinson Township et al v. Commonwealth et al (Docket No. 284-MD-2012) -- but that a briefing schedule was requested based on the court hearing the case during the week of Oct. 15 in Pittsburgh, during a regularly scheduled argument session. "We anticipate that they will issue an order setting argument during that week, but we haven't seen it yet," Moody said.
Additional amicus briefs in support of the appellants were filed by the Pennsylvania chapter of the National Association of Royalty Owners, the Northern Wayne Property Owners Alliance, the Pennsylvania Chamber of Business and Industry, the Pennsylvania Manufacturers' Association, the National Federation of Independent Business, the Pennsylvania Business Council and the Pennsylvania Chemical Industry Council.
Attorneys for the plaintiffs also submitted briefs, asking the high court to reverse the appellate court's ruling that the Delaware Riverkeeper Network and a doctor from Monroeville, PA, lack legal standing in the matter. The plaintiffs currently include Cecil, Mount Pleasant, Peters and Robinson townships in Washington County, South Fayette Township in Allegheny County, Nockamixon Township and Yardley Borough in Bucks County (see NGI, April 2).
On Aug 15, the Commonwealth Court ordered that an injunction against Act 13's preemption provision would remain in place pending appeal). But the court did allow the DEP to continue exercising its waiver powers during the appeal process, which the state has requested to be expedited (see NGI, Aug. 6). Act 13, which Gov. Tom Corbett signed into law in February, gave shale-rich counties in the state the ability to impose a 15-year impact fee on unconventional gas wells if they agreed to abide by state zoning rules, and it made upgrades to environmental regulations (see NGI, Feb. 20).
In related news, the PUC has issued its first two nonbinding advisory opinions on local drilling ordinances, part of its new responsibilities to ensure that localities are in compliance with Act 13. In separate letters to officials in Bradford and Fayette counties, the PUC warned that the ongoing legal challenge to Act 13 could complicate matters and advised them to insert specific language into their ordinances to avoid any regulatory uncertainty.
"Essentially we are just acknowledging that portions of the law are still under appeal before the court system, and reminding the municipalities of them," PUC spokeswoman Jennifer Kocher said. The agency has so far received 35 requests for advisory opinions from counties and municipalities across the state.
The PUC told Bradford County Planning Director Raymond Stolinas Jr. that two sections of North Towanda Township's local ordinance did not appear to comply with Act 13. Specifically, North Towanda has to amend one section to specify that its setback requirements are only applicable to unconventional gas wells, rather than to oil and gas wells in general. Other changes also are required.
Meanwhile, Fayette County Planning Director Sara Rosiek was notified that her county's ordinance appeared to comply with Act 13. Fayette and Bradford counties had requested advisory opinions from the PUC on April 12 and 13, respectively. Two additional municipalities -- South Fayette Township in Allegheny County and Robinson Township in Washington County -- are still waiting to receive advisory opinions from the PUC. Both are plaintiffs in the legal challenge.
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