Shale Daily / NGI All News Access

Judges Hear Arguments Over Pennsylvania Marcellus Law

A panel of seven Commonwealth Court judges heard oral arguments Wednesday in a lawsuit filed by seven Pennsylvania municipalities and others that claim parts of Act 13, the state's new omnibus Marcellus Shale law, are unconstitutional.

At issue are the land-use provisions of Act 13, which Gov. Tom Corbett signed into law on Feb. 14 (see Shale Daily, Feb. 15). The plaintiffs argue that the provisions should be struck down because they allow the state to preempt local ordinances and open areas previously off limits to gas drilling, a move they allege could harm the public's health and safety.

The act provided that counties that opted to collect a per well impact fee would agree to state ordinances and regulations governing drilling. All of the counties in the Marcellus Shale area agreed to the impact fee and the state public utility commission has finalized rules and procedures for collecting the fee (see Shale Daily, May 11).

John Smith, lead attorney for the plaintiffs and a lawyer with the Canonsburg, PA-based firm Smith Butz LLC, told NGI's Shale Daily that Wednesday's proceedings were unusual because the judges sat en banc and it was a packed courtroom.

"It was soup to nuts," Smith said Thursday. "That panel usually only hears matter on appeal, but the court was hearing these arguments for the first time. There were a lot questions asked of all parties, critical questions about getting to the heart of the issue. I thought the court did a good job in trying to ferret out the strengths and weaknesses of both sides."

The panel has the power to issue a ruling without taking additional evidence, but Smith said the line of discussion on Wednesday indicated that there was a chance the judges could ask for more information as they try to determine whether the industry received special treatment with Act 13's passage. A ruling could be issued within the next several months.

"The court understood our argument," Smith said. "If the state does attempt to enact zoning legislation, then the legislation that they enact has to be constitutional. The court recognized that and really asked the state the same thing. That's really the issue. We don't argue that the state can't zone, but when they do they've got to follow the same constraints that we do. And we're saying that they didn't."

In April, Commonwealth Court Judge Keith Quigley granted a 120-day injunction on portions of Act 13 on the grounds that the plaintiffs needed more time to prepare their legal challenge and to amend local ordinances (see Shale Daily, April 12). Smith said the state had appealed Quigley's injunction to the Pennsylvania Supreme Court and was trying to have it overturned.

The plaintiffs in the case include five municipalities in the Pittsburgh area -- Cecil, Mount Pleasant, Peters and Robinson townships in Washington County, and South Fayette Township in Allegheny County -- Nockamixon Township and Yardley Borough in Bucks County, the Delaware Riverkeeper Network, a few township officials and a doctor from Monroeville, PA (see Shale Daily, April 2).

The defendants include the state, the Pennsylvania Department of Environmental Protection (DEP), DEP Secretary Michael Krancer, the state Public Utility Commission and Attorney General Linda Kelly.

According to court documents, seven parties have been designated as amicus curiae in the case, meaning they are welcome to advise the court on its decision. Those parties are the Pennsylvania Independent Oil and Gas Association, the Marcellus Shale Coalition, Chesapeake Appalachia LLC, MarkWest Liberty Midstream & Resources LLC, Penneco Oil Co. Inc., the state House Democratic Caucus and the Conservation Voters of Pennsylvania.

The case is Robinson Township et al v. Commonwealth et al (Docket No. 284-MD-2012).

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