The Commonwealth of Pennsylvania is asking the state Supreme Court to expedite its appeal of an appellate court ruling that said portions of Act 13, the state's new omnibus Marcellus Shale law, are unconstitutional.

According to court documents filed in the case -- Robinson Township et al v. Commonwealth et al (Docket No. 284-MD-2012) -- the state Department of Environmental Protection (DEP) and Public Utility Commission (PUC) filed an appeal on July 27, followed by Attorney General Linda Kelly on July 30.

Pennsylvania wants the high court to overturn a July 26 ruling by the Commonwealth Court, which invalidated Act 13's zoning restrictions on the grounds that they violate municipalities' right to substantive due process (see NGI, July 30).

In an Application for Expedited Consideration filed on July 30, the DEP and PUC said the appellate court's ruling "gutted Act 13 of one of its key interstitial parts and has created significant uncertainty for the Commission, the Department, and the regulated community at this critical juncture in the Marcellus Shale development." The agencies urged the high court to hear the appeal in Pittsburgh in October and allow 14 days for an opening brief, followed by another 14 days for a response and seven days for a reply.

"There are real time issues that this ruling is affecting," Patrick Henderson, energy adviser to Gov. Tom Corbett, told NGI. "The PUC is in sort of a holding pattern on what they do under the new law. The law charged them with reviewing municipal ordinances and distributing impact fee dollars in the fall. The DEP has applications before it that they don't know what to do with."

In a 4-3 decision, the Commonwealth Court said Act 13 violated the constitutional right to clean air and water, and said the DEP's ability to waive setback requirements was also unconstitutional.

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).

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