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Pennsylvania Supreme Court Denies PUC Appeal on Act 13

The Pennsylvania Supreme Court last Thursday quashed an appeal by the state Public Utility Commission (PUC), leaving in place an earlier court 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 would not be heard (Robinson Twp. et al v. PUC AG & DEP, No. 100 MAP 2012). Justice Thomas Saylor dissented.

PUC spokeswoman Denise McCracken told NGI 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 under Section 3305 of the state's Oil and Gas Act (see NGI, Nov. 5, 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 Act, which addresses the uniformity of local ordinances (see NGI, July 30, 2012).

The state's high court already has 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 NGI, July 22).

"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. "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 added that 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."

In challenging Act 13, seven municipalities (Washington County's Cecil, Mt. Pleasant, Peters and Robinson townships; Allegheny County's South Fayette Township; 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.

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