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 the latest version of the docket in the case — Robinson Township et al v. Commonwealth et al (Docket No. 284-MD-2012) — separate notices of appeal were filed by the Pennsylvania Public Utility Commission (PUC) on Friday and state Attorney General Linda Kelly on Monday.
Both state offices want the high court to overturn Thursday’s 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 Daily GPI, July 27).
“Yesterday the Commonwealth filed a request for an expedited hearing on its appeal, outlining the reasons why we believe the appeal needs to be heard in a timely fashion,” Patrick Henderson, energy adviser to Gov. Tom Corbett, told NGI on Tuesday. “Otherwise, you don’t know what the schedule of the court is going to be. It could be weeks, months longer than that until they schedule the matter for consideration.”
Henderson added that the request for an expedited hearing “builds upon the appeal, and says ‘here are the reasons why we believe this needs to be dealt with much sooner than that.'”
On Tuesday the Observer-Reporter of Washington, PA, reported that the state has asked the high court to hear the appeal in Pittsburgh in October, allow 14 days for an opening brief, another 14 days for a response and seven days for a reply.
A clerk for the state Supreme Court told NGI that documents submitted Friday and Monday for the appeal still needed to be reviewed and assigned docket numbers, and was unable to provide any additional information. PUC spokeswoman Jennifer Kocher referred questions on the appeal to Corbett’s office. A spokesman for Kelly’s office could not be reached for comment.
In a 4-3 decision, the Commonwealth Court said Act 13 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.
“There are real time issues that this ruling is affecting,” Henderson said. “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.
“We’re just saying that we need guidance here. We need direction, we need finality. And the bigger picture is the uncertainty that this has thrown within the development world. They’re wondering to what extent municipalities are now further empowered to require a permit or to certain zoning restrictions. That could also affect our operations in real time.”
On Friday Corbett criticized the lower court’s ruling and vowed to appeal (see Daily GPI, July 30). He signed Act 13 into law in February, giving shale-rich counties in the state the ability to impose a 15-year impact fee on unconventional gas wells and make upgrades to environmental regulations (see Daily GPI, Feb. 15).
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.
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