In one sentence the Pennsylvania Supreme Court has denied the state’s request to reconsider a landmark ruling that significantly weakened centralized oil and gas regulation and returned to municipalities their ability to change or enforce local zoning laws.
The high court ruled in December that parts of Pennsylvania’s most comprehensive piece of oil and gas legislation — Act 13 — violated Article I, Section 27, an environmental rights amendment included in the state’s constitution (see Shale Daily, Dec. 20, 2013).
The decision has since created a significant amount of confusion for the state’s operators, its regulators and, to an extent, the local officials who now have more power to determine how oil and gas development unfolds in their communities.
In January, Republican Gov. Tom Corbett’s administration said the court made its own “sweeping factual findings” and asked the justices to send the case back to a lower court so that a fair trial and more evidence could be presented (see Shale Daily, Jan. 17; Jan 3). Many believed that effort was a longshot at best and expected the high court to reaffirm its ruling and deny the administration’s request.
“In light of the length and depth of the Supreme Court’s original decision, I think the court declining to grant the motion of the Commonwealth was expected,” said Blaine Lucas, chairman of the Pittsburgh-based law firm Babst Calland’s public sector services group.
A lower court had sided with seven townships and the Delaware Riverkeeper Network, which filed suit against Act 13 when Corbett signed it into law in 2012 (see Shale Daily, Oct 22, 2012; Feb. 15, 2012).
The high court’s six members voted largely along party lines with the ruling upheld at 4-2. Three Democrats were in the majority, while two Republicans dissented. Chief Justice Ronald Castille, a Republican, tipped the scales and voted with the majority.
Only Justice Thomas Saylor filed a dissenting statement on Friday when the court denied the state’s request, saying essentially that the high court overstepped its boundaries by judging the case on constitutional grounds and adding that the case should be remanded to a lower court for a more thorough review of the evidence.
“Not only has the court set aside several critical environmental protections championed by both Gov. Corbett and the General Assembly, they have infringed upon a fact-finding role that they have always held was not their role to invade,” said James D. Schultz, general counsel to the governor, in a statement. “We are disappointed that the Supreme Court of Pennsylvania has once again ruled in favor of an unprecedented expansion of judicial authority to strike down a variety of legislative enactments under Article I, Section 27.”
Those who fought against Act 13 have said the state had ample time to present its case before the high court and said the ruling was justified.
Jordan Yeager, one of the lead attorneys representing the townships that filed suit, said “the Corbett administration wanted a do-over and the Supreme Court said ‘no.’ Act 13 violated our fundamental constitutional rights. The court’s landmark ruling stands and we are all safer as a result.”
Thus far, the industry’s response has been relatively muted. In an interview with NGI’s Shale Daily last month, David Spigelmyer, president of the Marcellus Shale Coalition, said his members were concerned, but added that they were working more closely with communities across the state to address any questions in the wake of the ruling.
Lawyers in Robinson Township, which was part of the original lawsuit against Act 13, recently asked the court’s permission to be dropped as the lead plaintiff in the case. Voters there cast out two supervisors and instead voted in two who support the oil and gas industry.
Other parts of the law were remanded back to a lower court for further consideration, including whether the state’s impact fee can remain in effect and whether doctors should be able to disclose the health impacts of hydraulic fracturing to their patients. Now, the industry and state regulators will be forced to wait and see what other changes arise from those cases.
“This is not something that’s going to resolved in the next month or two” Lucas said. “The dust is not settling on this anytime soon.”
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