Nearly three weeks after ruling that portions of Act 13, Pennsylvania’s new omnibus Marcellus Shale law, were unconstitutional, the Commonwealth Court on Wednesday ordered that an injunction against the law’s preemption provision will remain in place pending appeal, while one affecting setback waivers is lifted.

The court heard oral arguments over whether the state’s appellate court rules — which require that any previous injunction order be automatically stayed in the event of an appeal by the Commonwealth, a legal action known as supersedeas — should be waived for the legal challenge to Act 13’s provision allowing state preemption of municipal zoning.

Ultimately, the court decided to side with Act 13 opponents and kept the injunction in place.

“Obviously we think it’s a good decision,” Jordan Yeager, a plaintiffs’ attorney with the Morrisville, PA-based law firm Curtin & Heefner LLP, told NGI’s Shale Daily Thursday. “It would have been havoc all around if we had a period of time when municipalities would be required to enact ordinance provisions that the court has already deemed to be unconstitutional.”

In a 4-3 decision on July 26, the appellate court ruled that Act 13’s zoning requirements were unconstitutional on the grounds that its limits on local zoning violate municipalities’ right to substantive due process (see Shale Daily, July 27). The Commonwealth immediately appealed to the state Supreme Court and asked for the process to be expedited (see Shale Daily, Aug. 1).

Kevin Moody, vice president and general counsel for the Pennsylvania Independent Oil and Gas Association (PIOGA), told NGI’s Shale Daily that the court did not lift the supersedeas for another key provision of Act 13 that it also found unconstitutional — that the state Department of Environmental Protection (DEP) be given the power to grant waivers on setback restrictions. Essentially, that leaves in place the DEP’s waiver powers while the appeal is pending.

“That’s significant for the industry because that has real world, every day practical application,” Moody said Thursday. “The DEP can continue to evaluate and, if appropriate, grant waivers using the same standard they have used for over 27 years under the [state] Oil and Gas Act.

“We’re upset with the present situation because, come Sept. 1, lots of money has to be paid for the local impact fee. But what the industry was supposed to receive in exchange — consistent, uniform zoning provisions across the state — we don’t have at this point.”

Yeager said he believes the appellate court sent a message in allowing the one injunction to continue — that Act 13’s opponents will ultimately prevail.

“The court ruled that we have a reasonable likelihood of success going forward,” Yeager said. “The law is a drastic overreach that would undermine the whole premise of zoning around the state, and it would disrupt the property and due process rights of residents and businesses. We’re confident that the [state] Supreme Court will agree.”

Moody flatly disagreed. “This means nothing, as far as we’re concerned, as to the likelihood of success at the Supreme Court,” he said. “The judge who presided yesterday was the author of the [appellate court] opinion. He announced at the beginning of the proceedings that he didn’t want to hear any arguments on the merits.”

Act 13, which Gov. Tom Corbett signed into law in February, gave shale-rich counties in the state the ability to impose a 15-year impact fee on unconventional gas wells if they agreed to abide by state zoning rules, and made upgrades to environmental regulations (see Shale Daily, 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 (see Shale Daily, April 2).

The case is Robinson Township et al v. Commonwealth et al (Docket No. 284-MD-2012).