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Pennsylvania Challenges High Court's Ruling on Act 13

Two state agencies have filed a motion with the Pennsylvania Supreme Court asking it to reconsider a landmark decision made on Dec. 19 that struck down key provisions of the state's most comprehensive oil and gas law.

The agencies said the high court made its own "sweeping factual findings" regardless of the evidence on hand and requesting that the justices remand the case to a lower court for further deliberation.

The Pennsylvania Department of Environmental Protection (DEP) and the Public Utilities Commission filed the motion on Thursday, after the court ruled that parts the law, Act 13, passed in 2012 (see Shale Daily, Feb. 15, 2012), violated the state's constitution by providing a "blanket accommodation of industry and development."

The high court's ruling essentially handed back to municipalities their right to enforce or change local zoning laws in order to better govern the orderly development of their land. It effectively put the DEP in a state of regulatory limbo by diminishing its authority to completely oversee oil and gas drilling in the state's booming Marcellus Shale formation (see Shale Daily, Dec. 20, 2013).

"In announcing a never-before-employed balancing test against which the constitutional validity of the law is to be judged, the Pennsylvania Supreme Court made its own sweeping factual findings regarding the impact of Act 13, none of which finds any support in the sparse and uneven factual record that was made before the Commonwealth Court," said James D. Schultz, General Counsel to Gov. Tom Corbett. "The Supreme Court's decision is a stunning departure from the historical practice of that court, and an unrestrained venture into a fact-finding role that the court always has insisted is not its proper place in the judicial system."

The Commonwealth Court sided with the seven townships and a public advocacy group that filed suit against the law by striking down Act 13's uniform zoning scheme, ruling that it violated substantive due process, which requires that statutes have a legitimate public purpose to create a balance between benefiting the public and individual rights (see Shale Daily, Oct 22, 2012).

Many had expected the high court to rule on the same grounds. Instead, its ruling hinged largely on a reading of Article I, Section 27, a rare environmental rights amendment included in the state's constitution. A plurality of the court found that the centralized zoning regulations violated the amendment, writing that Pennsylvania "has a notable history of what appears retrospectively to have been a shortsighted exploitation of its bounteous environment."

In their application for reconsideration, the state agencies are asking the Supreme Court to follow established precedent and send the case back to the Commonwealth Court for the development of an "evidentiary record," or a thorough and fair process in which both sides equally participate. The motion also asks for clarity on whether Act 13 does in fact apply to and violate the environmental rights amendment.

The Act 13 ruling has sown a number of uncertainties among proponents and opponents of the law (see Shale Daily, Dec. 27, 2013). For one, it is unclear how the thousands of cities and townships in the state will apply their zoning ordinances and what operators can expect in terms of how the DEP and those entities will interact during the permitting process.

Also caught in the crossfire is the court's decision to strike down the DEP's ability to grant waivers on setbacks for drilling activities near water bodies. In doing so, the court made vulnerable nearly half of all the rural townships where drilling is taking place that don't have zoning ordinances or environmental safeguards.

Without the DEP's ability to apply certain zoning ordinances in those areas, officials at the agency are concerned that the court's ruling has undermined its responsibility to protect public resources, such as park land. In the motion, the DEP contends that the high court misunderstood how the statutory provisions it struck down work separately from each other and is asking the justices to direct the Commonwealth Court to study that question as part of the other matters that need examination.

The townships and others who opposed Act 13 have said they will challenge the state's request for reconsideration.

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