Pennsylvania Gov. Tom Corbett said Friday the state has appealed to the state Supreme Court a ruling by the Commonwealth Court that struck down portions of Act 13, the state’s new omnibus Marcellus Shale law.
“The provisions struck down by the Commonwealth Court are critically important for job creators who are employing more than 240,000 Pennsylvanians, for landowners seeking to exercise their property rights, and for local governments looking for guidance on how they may reasonably regulate oil and gas operations,” Corbett said. “The provisions are also integral to the enhanced environmental standards and impact fee revenue portions of the Act. Indeed, there would be no Act without each of these crucial pieces.”
In a 4-3 decision on Thursday, the Commonwealth Court said portions of Act 13 were unconstitutional on the grounds that the limits on local zoning violate municipalities’ right to substantive due process. The majority also said Act 13 violated the constitutional right to clean air and water (see Shale Daily, July 27).
The ruling nullified the zoning portion of the law and the state Department of Environmental Protection’s (DEP) ability to waive setback requirements. The court did not touch the rest of Act 13’s provisions — including the Marcellus Shale impact fee and environmental protections.
But that was apparently little consolation for Corbett and state legislators, who spent three years crafting Act 13.
“It is important to note that the provisions casually set aside by the court were the result of months of compromise and negotiation, with significant input and support from Pennsylvania’s local government associations,” Corbett said. “Both the County Commissioners Association of Pennsylvania and the Pennsylvania State Association of Township Supervisors, which represents 1,455 municipalities, urged passage of the law. This decision endangers the jobs of tens of thousands of Pennsylvanians and deprives citizens of their property rights.
“It is the General Assembly and Governor’s prerogative to establish policy; it is the court’s job to pass judgment on the constitutionality of this policy, not its merits. Act 13 clearly meets the constitutionality test, and I am confident the Supreme Court will adhere to its responsibility in a prompt and timely manner.”
The plaintiffs in the case — Robinson Township et al v. Commonwealth et al (Docket No. 284-MD-2012) — 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).
Act 13, which 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 and made upgrades to environmental regulations (see Shale Daily, Feb. 15).
In April, Commonwealth Court Judge Keith Quigley granted a 120-day injunction on portions of Act 13 on the grounds that the plaintiffs needed more time to prepare their legal challenge and to amend local ordinances (see Shale Daily, April 12). Smith said the state had appealed Quigley’s injunction to the Pennsylvania Supreme Court and was trying to have it overturned.
Seven parties were designated as amicus curiae in the case, meaning they are welcome to advise the court on its decision. Those parties are PIOGA, MSC, Chesapeake Appalachia LLC, MarkWest Liberty Midstream & Resources LLC, Penneco Oil Co. Inc., the state House Democratic Caucus and the Conservation Voters of Pennsylvania.
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