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Pennsylvania Townships Challenge State's Bid to Reverse Act 13 Ruling

Seven Pennsylvania Townships and a public advocacy group have filed an answer to the state's request asking the Pennsylvania Supreme Court to reconsider its decision ruling that parts of Act 13 are unconstitutional.

In their answer to the state's challenge, the townships argue that a late request for a factual review by a lower court is contradictory to the state's earlier arguments and merely an effort to "change the outcome in their favor." The townships went further by saying the state had ample time to address their arguments but chose to ignore the plain language included in the state's environmental rights amendment, which the court said was violated by Act 13 in providing a basis for striking down parts of the law.

Earlier this month, the townships said they would challenge an application for reconsideration filed by the Pennsylvania Department of Environmental Protection (DEP) and the Pennsylvania Public Utilities commission, asking the court to reverse a decision it made in December that struck down parts of Act 13, the state's comprehensive oil and gas law passed in 2012 (see Shale Daily, Jan. 3; Dec. 20, 2013).

In filing the state's application, James D. Schultz, general counsel to Republican Gov. Tom Corbett, said the high court used a "never-before-employed balancing test" to make its own "sweeping factual findings" regarding the impact of Act 13. Schultz said the ruling amounted to an "unrestrained venture into a fact-finding role that the court always has insisted is not its proper place in the judicial system."

The agencies asked that the case be sent back to a lower court where an "evidentiary record" could be presented for a thorough and fair process in which both sides equally participate, saying the court's decision to rule on the basis of the environmental rights amendment didn't consider all the implications of  its ruling.

The high court's decision hinged largely on Article I, Section 27 of the state's constitution, an environmental rights amendment. A plurality of the court found that the centralized zoning regulations included in Act 13 violated the amendment and the constitution. Its ruling essentially gave back to municipalities their right to change or enforce local zoning laws, while also throwing out the DEP's ability to grant waivers on setbacks near waterbodies in rural areas (see Shale Daily, Dec. 27, 2013). Other parts of Act 13 were remanded to a lower court for reconsideration, as well.

The decision has stoked widespread uncertainty about the strength of the law and the DEP's ability to protect natural resources in rural communities without zoning ordinances across Pennsylvania. In their answer, though, the townships said the court's decision will not have an impact on the protection of the state's water and land.

"[The court's] Section 27 analysis does not create a new standard. Rather, it follows the plain language of Section 27, which has been part of the Pennsylvania constitution for over 40 years," the townships wrote in their answer. "The agencies clearly recognized this standard, conceding that the Commonwealth, as a trustee, has a duty under Section 27 to conserve and maintain public natural resources."

The townships say the state is now claiming ignorance of their earlier arguments that clearly invoked the language of Section 27.

"The agencies had ample opportunity to defend the constitutionality of Act 13 when evaluated against Section 27 standards by bringing all potential arguments to the table," they said. "The agencies could have demonstrated specifically how the commonwealth fulfilled its fiduciary obligation, beyond merely proclaiming that it it did."

Instead, lawyers for the townships wrote that the state chose not to argue against Act 13's violation of the environmental rights amendment, "brushing aside citizens’ arguments, saying, essentially, that there was nothing for either this court or the Commonwealth court to see."

Art Heinz, a spokesman for the Pennsylvania courts, said it remains unclear when the supreme court will decide on the state's application for reconsideration. He said it's a common tactic in supreme court cases, but he added that the court rarely reverses a decision.

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