Attorneys on both sides of the legal battle over Act 13, Pennsylvania’s omnibus Marcellus Shale law, spent two hours in a packed Pittsburgh courtroom Wednesday giving oral arguments before the state Supreme Court.
The six-judge panel is now tasked with deciding whether to uphold or overturn an appellate court ruling in July, which said portions of Act 13 were unconstitutional on the grounds that its limits on local zoning violate municipalities’ right to substantive due process (see Shale Daily, July 27). The case is Robinson Township et al v. Commonwealth et al, No. 284-MD-2012.
Kevin Moody, general counsel for the Pennsylvania Independent Oil and Gas Association (PIOGA), said he had reviewed the proceedings and was optimistic.
“I’m encouraged that Justice [Thomas] Saylor apparently understood and agreed with a key point of our argument, that all municipal zoning authority flows from the General Assembly, and that the [municipalities’] authority wouldn’t exist but for a grant of authority from the General Assembly,” Moody told NGI’s Shale Daily on Wednesday. “That’s very encouraging.”
Moody added that attorneys representing the Commonwealth did a good job framing the argument as a state-versus-municipality authority issue. There was also discussion over a 2009 ruling inwhicha municipality was found to have improperly denied an oil and gas company a drilling permit (Huntley & Huntley Inc. v. Borough Council of the Borough of Oakmont).
“Act 13 represented the legislature’s balancing of the ‘where’ guidance and clarification that was requested in the court’s prior Huntley decision, which drew a distinction between how drilling is conducted and where,” Moody said. “In Huntley they said the ‘how’ was preempted by the Oil and Gas Act, but the ‘where’ was not, absent further legislative guidance. The justices said that phrase twice [on Wednesday]. On the industry’s side, we’ve always believed that now the legislature and Act 13 have provided that further guidance on the ‘where,’ and that’s what Act 13 is. It clearly is what was envisioned by the Supreme Court in that Huntley decision.”
Moody added that Chief Justice Ronald Castille and Justice Max Baer also discussed the balancing of state and municipal interests, and had questioned whether the proper balancing had been done by the state’s General Assembly. “It’s encouraging that they are recognizing that there is a balancing of interests going on here. The only thing that’s not encouraging about that is the question of proper balancing is a legislative question. It’s not really for the judiciary to determine whether it was properly balanced.”
Smith Butz LLC attorney John Smith, who represents the plaintiffs, told NGI’s Shale Daily that he also thought the proceedings went well. The plaintiffs are 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 Daily, April 2).
“I thought it went well,” Smith said Wednesday. “What was good is that they let us argue every single issue that we had. By contrast, at the Commonwealth Court we only had 15 minutes per side. So the majority of our case wasn’t even orally argued at the Commonwealth Court, and there were a lot of issues that people heard for the first time today. The court gave us full opportunity to develop those issues, as it did the other side.”
Smith said the line of questioning from the justices focused “a lot about zoning, about how zoning works, what the function of zoning is, what happens if the state zones and can the state preempt local governments. “The justices had questions on the other side about how Act 13 is going to affect residential neighborhoods. They were asking the right questions, and we’re comfortable that the law is clear. And as I explained to the court today that, in my opinion, the Commonwealth Court got it right.”
Plaintiffs’ attorney Jordan Yeager, of the Morrisville, PA-based law firm Curtin & Heefner LLP, concurred. “I think it went fine. The court gave us all two hours to argue our points. It was obviously a very thorough discussion, which reflects the seriousness of the issue. Now we’ll wait and see.”
Moody, Smith and Yeager were in agreement that it could be some time before the high court issues a final ruling on the issue.
“You figure we had two hours of argument over maybe 12 different constitutional issues,” Smith said. “I can’t even fathom it. The court already has a full plate of activities. They will have to write an opinion and address every single thing. It’s going to be a pretty long opinion. I don’t expect anything [soon]. Maybe this year. I guess at the earliest, maybe December. It’s so hard to speak for their schedule, it would be pure speculation.”
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