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Pennsylvania Governor Appeals Unconstitutional Ruling on Act 13

Pennsylvania Gov. Tom Corbett on Friday appealed to the state Supreme Court a ruling by the Commonwealth Court that struck down portions of Act 13, the state's new omnibus Marcellus Shale law.

In a 4-3 decision one day earlier, the Commonwealth Court said portions of Act 13 were "unconstitutional, null and void" on the grounds that its limits on local zoning violate municipalities' right to substantive due process.

The majority also said Act 13 violated the constitutional right to clean air and water, and that it was also unconstitutional for the Pennsylvania Department of Environmental Protection (DEP) to have the power to grant waivers on setback restrictions (Robinson Township et al. v. Commonwealth et al., No. 284-MD-2012). The court did not touch the rest of Act 13's provisions -- including the Marcellus Shale impact fee and environmental protections; only the requirements and the DEP's ability to waive setbacks were struck down.

But that was apparently little consolation for Corbett and state legislators, who spent three years crafting Act 13.

"The provisions struck down by the Commonwealth Court are...integral to the enhanced environmental standards and impact fee revenue portions of the Act," Corbett said. "Indeed, there would be no Act without each of these crucial pieces. It is important to note that the provisions casually set aside by the court were the result of months of compromise and negotiation, with significant input and support from Pennsylvania's local government associations."

In a ruling written for the majority by Judge Dan Pellegrini, the court said it didn't buy the Commonwealth's argument that Act 13's zoning requirements would help the state optimally develop its oil and natural gas resources, protect the health and safety of its citizens and also the environment. Pellegrini said Act 13 violated the substantive due process of municipalities because it could require them to violate their comprehensive plans for growth and development. He also said the law violated the constitutional right to clean air and water because "it preempts a municipalities' obligation to plan for environmental concerns for oil and gas operations."

But the court rejected the municipalities' arguments that Act 13 was unfair because it allowed natural gas operators to use eminent domain and classified them differently from other industries.

Three judges, P. Kevin Brobson, Robert Simpson and Anne Covey, disagreed. In a dissenting opinion, Brobson said he agreed with the majority's findings on several facets on the case but differed on the due process issue.

Industry supporters likewise expressed shock at the ruling and feared the entire law could be invalidated. "The premise for the General Assembly's action earlier this year was to provide certainty and predictability that encourages investment and job creation across the Commonwealth," said Marcellus Shale Coalition (MSC) President Kathryn Klaber. "Lack of uniformity has long been an Achilles' heel for Pennsylvania and must be resolved if the Commonwealth is to remain a leader in responsible American natural gas development and reap the associated economic, environmental and national security benefits."

Lou D'Amico, president of the Pennsylvania Independent Oil and Gas Association (PIOGA), called the ruling "a serious setback." He told NGI that the state needed "some predictability and uniformity in the rules and laws in Pennsylvania. That's why the legislature passed Act 13; that's why the governor signed it, and that's why we supported it."

The court ruled that most of the plaintiffs in the case -- Cecil, Mount Pleasant, Peters and Robinson townships in Washington County, South Fayette Township in Allegheny County, Nockamixon Township and Yardley Borough in Bucks County, and two council members -- have legal standing, but it said the Delaware Riverkeeper Network and a doctor from Monroeville, PA, do not (see NGI, April 2).

Act 13, which 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 and made upgrades to environmental regulations (see NGI, Feb. 20). 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 NGI, April 16). Smith said the state had appealed Quigley's injunction to the Pennsylvania Supreme Court and was trying to have it overturned.

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