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Industry 'Concerned' Pennsylvania Supreme Court Could Split on Act 13

There is "significant concern" among oil and gas interests that the Pennsylvania Supreme Court could deadlock in a 3-3 tie over the constitutionality of Act 13 because the high court's newest appointee will not participate in the case challenging the law.

Art Heinz, spokesman for the state Supreme Court, told NGI's Shale Daily that Superior Court President Judge Correale Stevens is scheduled to be sworn in as the high court's seventh justice on July 30. "Typically, if a person coming onto the bench has not participated in oral arguments that have already been held, they would not participate in the decision making," Heinz said Thursday.

At issue is the constitutionality of Act 13, the state's omnibus Marcellus Shale law. Last July, the state's Commonwealth Court ruled 4-3 that the zoning restrictions contained in Act 13 violated municipalities' right to substantive due process (see Shale Daily, July 27, 2012). The appellate court also said the law violated the constitutional right to clean air and water, and said the state Department of Environmental Protection's (DEP) ability to waive setback requirements was also unconstitutional.

Pennsylvania Gov. Tom Corbett immediately appealed the appellate court ruling, and the state government followed with a call for an expedited hearing (see Shale Daily, Aug. 1, 2012; July 30, 2012). The Supreme Court heard oral arguments on the case last October (see Shale Daily, Oct. 18, 2012).

Corbett nominated Stevens to the high court in June to fill the spot vacated by former Justice Joan Orie Melvin, who resigned after her conviction on six counts of corruption (see Shale Daily, June 18; March 28). Orie Melvin had not participated in the Act 13 case, Robinson Township et al v. Commonwealth et al (Docket No. 284-MD-2012).

A 3-3 split would mean the Commonwealth Court ruling would stand.

Lou D'Amico, president of the Pennsylvania Independent Oil and Gas Association (PIOGA), told NGI's Shale Daily that he doesn't expect a ruling weighted heavily in favor of the plaintiffs or the defendants.

"I think they're going to uphold part of the language in the Act and maybe change some other stuff or remand it back to the General Assembly to do something different," D'Amico said Thursday. "I don't see a split decision coming. I think the Supreme Court will take a reasoned approach and come up with some final answer on it."

Kevin Moody, general counsel for PIOGA, told NGI's Shale Daily the defendants wanted to see a full complement of seven justices on the high court, and that there was "significant concern" with Stevens sitting out. "Obviously the worst possibility, aside from a 3-3, would be a flat out prohibition on the legislature doing anything contrary to so-called local zoning power," Moody said Thursday.

Asked about the likelihood of a 3-3 split, Moody added "with this particular court, it's difficult to say. They have come out with some unanimous decisions on issues where the thought was that they might be divided in some way. This 3-3 potential split just revolves around party lines."

Three of the Supreme Court justices -- Chief Justice Ronald Castille, Thomas Saylor, and J. Michael Eakin -- are Republicans, while another three -- Max Baer, Debra Todd and Seamus McCaffery -- are Democrats. Stevens is a Republican.

"I've always believed that this should not be a political issue, but the reality is a lot times those considerations may not be directly reflected in decisions, but certainly could be underlying them," Moody said. "Obviously, people think that the Democrats would side with the Commonwealth Court, while Republicans will side with business interests."

On when the high court would announce a ruling, Moody said, "the Supreme Court does take its time. We thought there would be a quick decision because of the public importance of this, but that has to be balanced with their need to get it right. We hope with this last announcement that the court is close to rendering a decision."

The plaintiffs in the case include 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, 2012).

Plaintiffs' attorney Jordan Yeager, of the Morrisville, PA-based law firm Curtin & Heefner LLP, told NGI's Shale Daily that the municipalities "feel confident that the Supreme Court, however constituted, is going to recognize that Act 13 violated the state constitution, and that it will uphold what the Commonwealth Court decided."

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