PA PUC, DEP Seek to Overturn Supreme Court Act 13 Decision

Courtesy of Robert M. Donnan

Courtesy of Robert M. Donnan

Two Pennsylvania agencies on Thursday filed an application to reconsider the opinions and order entered by the state Supreme Court regarding its Act 13 ruling.

The Supreme Court on Dec. 19 declared key provisions of Act 13 – the state’s law governing Marcellus Shale drilling activities – as unconstitutional, including portions that would have taken zoning control out of the hands of local government bodies.

To read more about the Act 13 ruling, click here.

The DEP and PUC hired an outside law firm, Conrad O’Brien, P.C., to handle the filing. One of the partners of the firm is Cristopher Carusone, who joined the firm after leaving his position as Gov. Tom Corbett’s chief of staff in July.

Following the filing, general counsel for the governor’s office released the following statement:

Today, lawyers representing Commonwealth agencies and officials in the Robinson Township matter have sought reconsideration of the Supreme Court’s December 19, 2013, Opinions and Order.  In the Robinson Township decision, the Court declared key provisions of Act 13 of 2012 (the Commonwealth’s oil and gas law) to be unconstitutional.

In announcing a never-before-employed balancing test against which the constitutional validity of the law is to be judged, the Pennsylvania Supreme Court made its own sweeping factual findings regarding the impact of Act 13, none of which finds any support in the sparse and uneven factual record that was made before Commonwealth Court.  The Supreme Court’s decision is a stunning departure from the historical practice of that Court, and an unrestrained venture into a fact-finding role that the Court always has insisted is not its proper place in the judicial system.

Accordingly, today’s request for reconsideration seeks to give Act 13 its fair day in court, as every law of this Commonwealth deserves when challenged.  We are asking the Supreme Court to follow its own established precedent and remand the case to Commonwealth Court for the development of an evidentiary record (through a fair and thorough process in which all parties have a real and equal opportunity to participate), application of the Court’s newly-pronounced standards to the facts as found by the Commonwealth Court (with legal briefs from all parties), and finally a fair and final determination as to whether Act 13 violates Article I, Section 27 based on a full record and formal findings.

In addition, the Department of Environmental Protection is asking the Supreme Court to reconsider a decision that certain provisions of Act 13 that involve the agency’s responsibility to protect public resources (such as public parks) cannot stand separately from provisions that the Court has determined are unconstitutional.  The Department contends that the Supreme Court misunderstood how the statutory provisions work separately from each other and asks the Court to direct Commonwealth Court to study that question as part of the other matters it must examine on remand.

The SmithButz law firm handled the challenge to Act 13 on behalf of a handful of municipalities including Robinson, Cecil and Peters townships, a medical doctor and a nonprofit.

Reached Thursday afternoon, attorney John Smith said:

After more than 160 pages and more than a year of deliberation, I think the court sufficiently explained its reasoning and position with this case.  A majority of the court found that portions of Act 13 are unconstitutional – end of question.

Co-counsel, John Kamin, of Goldberg, Kamin & Garvin, said:

The PUC’s and DEP’s Request  For Reconsideration so that it can implement and utilize unconstitutional legislation is an affront to  the Citizens of Pennsylvania, and truly demonstrates the Executive Agencies’ inappropriate stake in this legislation. – John Kamin, co-counsel
Reached for reaction to the filing, state Rep. Jesse White, D-Cecil, who was vocal in his opposition to Act 13, said:
It’s unconscionable that the state of Pennsylvania is looking at a $1.4 billion deficit, yet, Gov. Tom Corbett is wasting even more taxpayer dollars in a last-ditch desperation stunt to protect his wealthy donors in the shale industry. This has ‘sore loser’ written all over it. It’s mind-boggling to me that the DEP is taking such extraordinary steps to advocate for less environmental and constitutional protections.
White also noted that it is highly irregular for appointed department heads in the Corbett administration to file a pleading of this nature, a responsibility that generally falls to the attorney general.
Attorney General Kathleen Kane has declined to defend the law.

To read the entire court filing, click on the link below:

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2 thoughts on “PA PUC, DEP Seek to Overturn Supreme Court Act 13 Decision

  1. steventodd says:

    Thanks. Excellent work. I’ve incorporated it into my blog, with appropriate credits, opt course 😉

    http://steventodd.wordpress.com/2014/01/02/act-13-ruling-observations-and-path-forward/

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