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Pennsylvania Supreme Court Quashes PUC Appeal on Act 13

The Pennsylvania Supreme Court quashed an appeal by the state Public Utility Commission (PUC) on Thursday, leaving in place a judge's order that the commission cannot use a review process to enforce some provisions of Act 13, the state's omnibus Marcellus Shale law.

In a single sentence, the high court ruled per curiam that the PUC's appeal of the case Robinson Twp. et al v. PUC AG & DEP (No. 100 MAP 2012) would not be heard. Justice Thomas Saylor dissented.

PUC spokeswoman Denise McCracken told NGI's Shale Daily on Friday the commission is "currently reviewing any options that we may have."

Last October, Commonwealth Court Senior Judge Keith Quigley issued a cease and desist order against the PUC from acting upon requests pursuant to Section 3305 of the state's Oil and Gas Act (see Shale Daily, Oct 31, 2012). That provision empowers the PUC to issue advisory opinions on whether local ordinances comply with Act 13 and the Pennsylvania Municipalities Planning Code (MPC), a statute from 1968.

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).

The Supreme Court has already heard oral arguments on a separate appeal of Act 13's constitutionality and is expected to make a decision in the near future. Supporters of the oil and gas industry have said they are concerned the high court could deadlock 3-3 over the issue (see Shale Daily, July 19).

"We're disappointed that the court isn't going to hear this appeal, which addressed the scope of the Commonwealth Court's injunction, but we are encouraged by Justice Saylor's dissent, indicating his willingness to consider the issues," Kevin Moody, general counsel for the Pennsylvania Independent Oil and Gas Association, told NGI's Shale Daily on Friday. "Other than that, it's difficult to read anything into this with respect to the court's view."

Moody said Saylor was considered a safe bet to back the industry in the separate Act 13 case. "He's been the one authoring the opinions that we have relied upon for our arguments that the General Assembly could put these restrictions on local zoning," Moody said. One example is a case from 2009 where a municipality was found to have improperly denied an oil and gas drilling permit (Huntley & Huntley Inc. v. Borough Council of the Borough of Oakmont).

"I did see a press report where attorneys for the municipalities are claiming some victory here, that this precludes the PUC from determining whether local zoning complies with Act 13's local zoning rules," Moody said. "But that is not correct. These aren't local zoning rules that [Quigley] said [the PUC] can't apply that review process to; these are Oil and Gas Act provisions, environmental law provisions, and the MPC."

Specifically, Moody said, Sections 3302 and 3303 of the Oil and Gas Act "were not ruled unconstitutional and in fact were determined to be constitutional by the Commonwealth Court's July opinion. Those aren't zoning provisions."

Seven municipalities (Washington County's Cecil, Mt. Pleasant, Peters and Robinson townships; Allegheny County's South Fayette Township; and Bucks County's Nockamixon Township and the Borough of Yardley) were joined by the Delaware Riverkeeper Network, township officials and a doctor from Monroeville, PA, in the legal challenges to Act 13.

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