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Pennsylvania PUC, DEP Petition State Supreme Court on Act 13 Cases

Just days after a seventh justice was sworn in to the Pennsylvania Supreme Court, the Public Utility Commission (PUC) on Tuesday submitted a request that the high court reconsider its decision to quash an appeal by the commission regarding enforcement of Act 13, the state's omnibus Marcellus Shale law.

Also Tuesday, the PUC and the Department of Environmental Protection (DEP) filed a joint request that the high court resubmit a separate legal challenge to Act 13, in hopes that the full complement of judges would hear the case and avoid a potential 3-3 tie.

On July 25, the high court quashed an appeal by the PUC seeking to overturn Commonwealth Court Senior Judge Keith Quigley's order that the commission cannot use a review process to enforce some provisions of Act 13 (see Shale DailyJuly 29;Oct 31, 2012). Quigley barred the PUC from acting upon requests pursuant to Section 3305 of the state's Oil and Gas Act, which empowers the commission to issue advisory opinions on whether local ordinances comply with Act 13 and the Pennsylvania Municipalities Planning Code.

Quigley had argued that the Commonwealth Court's ruling that portions of Act 13 were unconstitutional had permanently enjoined the state from enforcing Section 3304 of the Oil and Gas Act, which addresses the uniformity of local ordinances (see Shale Daily,July 27, 2012).

But in its reconsideration request, the PUC argued the high court misapplied a legal principle, specifically that after a case is fully concluded and is on appeal, a trial court's order enforcing the order on appeal is itself separately appealable.

"The court's recent decision left some ambiguity regarding the injunction that the Commission is requesting that the court clear up," PUC spokeswoman Denise McCracken told NGI's Shale Daily on Thursday.

The PUC also argued that the Supreme Court had underestimated the effect of Quigley's order and its relationship to other pending appeals. The commission then asked that if the high court doesn't agree to reconsider the case, that it at least issues an opinion explaining the rationale for not doing so.

"Stated otherwise, either this court has erred in quashing this appeal, or the Commonwealth Court lacked jurisdiction to enter the order...in the first place," the PUC application said. "A written opinion is needed to clarify the issue."

Kevin Moody, general counsel for the Pennsylvania Independent Oil and Gas Association, agreed that the high court needed to make its position clear in the case,Robinson Twp. et al v. PUC AG & DEP (No. 100 MAP 2012).

"The court's quashing [the PUC appeal], without any opinion or anything, throws into question whether that prior order had the status that the PUC thought it did," Moody said Thursday. "It calls into question the appealability of right of those types of orders.

"If the Supreme Court affirms that Section 3304 is unconstitutional, the Commonwealth Court order will remain in effect because it can't be appealed. That will then enjoin the PUC from enforcing [other sections of the Oil and Gas Act] which the Commonwealth Court en banc determined was constitutional. I hope they reconsider...because there are some serious issues about that."

Meanwhile, the application by the PUC and the DEP to have a separate legal challenge to Act 13 resubmitted to the Supreme Court cited the "deeply divided opinion" of the Commonwealth Court, which had deadlocked 4-4 over whether Section 3304 was constitutional. One of the judges had recused himself, resulting in the 4-4 tie.

"Due to the high profile nature and importance of the case, we believe that it is in everyone's best interests to have the entire court review the case now that they are at full strength," McCracken said.

In its application, the PUC and the DEP said the issues surrounding the Act 13 legal challenge "concern various serious matters of broad Commonwealth importance, including, among others, the relationship between the General Assembly and the municipalities it has created, whether the zoning provisions of Act 13 are a valid exercise of police power to guide reasonable development of the Commonwealth's oil and gas resources, and how much discretion the General Assembly my confer in environmental matters on the Commonwealth's environmental expert, the DEP.

"The resolution of these issues will impact not only core inter-government relationships, but will also affect communities across the Commonwealth in various economic, social and environmental ways. Because of the importance of issues pending in this appeal, and in light of the fierce divide among the commissioned judges of the Commonwealth Court...the PUC and the DEP submit that this matter should be considered by the Supreme Court with its full complement."

Moody concurred. "I would rather have it heard by the full complement because then you don't have the possibility of a 3-3 [tie], unless one of the justices would recuse themselves," he said. "But if they would grant this application, at worst they're going to have a 4-3 decision one way or the other."

Correale Stevens was sworn in as the high court's seventh justice on July 30. He replaced former Justice Joan Orie Melvin, who resigned after her conviction on six counts of corruption (see Shale DailyJune 18March 28). Orie Melvin had not participated in the Act 13 case, Robinson Township et al v. Commonwealth et al (No. 63 MAP 2012).

Last month a spokesman for the Supreme Court said Stevens would probably not hear the case, either, raising fears from the oil and gas industry that there could be a 3-3 tie. Such a vote would mean the Commonwealth Court ruling that parts of Act 13 were unconstitutional would stand.

"[Stevens] should hear the case because it is of significant and tremendous public importance," Moody said.

Last July, the Commonwealth Court ruled 4-3 that the zoning restrictions contained in Act 13 violated municipalities' right to substantive due process. The lower court also said the law violated the constitutional right to clean air and water, and said the DEP's ability to waive setback requirements was also unconstitutional.

Pennsylvania Gov. Tom Corbett immediately appealed the appellate court ruling, and the state government followed with a call for an expedited hearing (see Shale Daily,Aug. 1, 2012July 30, 2012). The Supreme Court heard oral arguments on the case last October (see Shale DailyOct. 18, 2012).

 The plaintiffs in the case 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 Shale DailyApril 2, 2012).

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