Marcellus Shale Coalition, PIOGA Petition Court to Intervene in Act 13 Case

The Marcellus Shale Coalition and the Pennsylvania Independent Oil & Gas Association on Wednesday filed a petition again asking the Commonwealth Court to allow them to intervene in the ongoing court case revolving around Act 13, the state’s law governing Marcellus Shale drilling activity.

In a 23-page court filing, attorneys for the industry groups – two attorneys from K&L Gates firm – argue that their clients have a “unique and compelling interest” in the case.

The state Supreme Court in December upheld a Commonwealth Court ruling that declared portions of Act 13 as unconstitutional – specifically, the portions that pre-empted local zoning ordinances.

But the Supreme Court also remanded several issues, such as medical gag orders, back to the lower court.

Both industry parties had petitioned the Commonwealth Court in April of 2012 to intervene in the case. They were denied. The industry groups also petitioned the Supreme Court to allow them to intervene. The Supreme Court also denied their request.

In Wednesday’s filing, attorneys wrote:

“The industry parties have…unique, compelling and legally enforceable interests in the outcome of this case.”

The attorneys argue that the industry’s interests can no longer be soundly represented by Commonwealth parties involved in the case.

They write:

When the issue before this court was the constitutionality of Act 13 in its entirety, this court concluded that those interests were adequately represented by the Commonwealth parties. Now, however, there are several issues before this court related to the interpretation and application of the Supreme Court majority decision and, more importantly for purposes of this petition in respect to the new issues presented, the industry parties are neither necessarily aligned with nor adequately represented by Commonwealth parties.”

They later add:

“Rather, the parties are potentially directly adverse to the Commonwealth parties.”

The petition also suggests that industry parties should be permitted to intervene in the case on remand because of the substantial impact the eventual outcome will have on them.

“The industry parties have a substantial and unrepresented interest in how the underlying issues are addressed and how pending questions are resolved. Act 13 contains a myriad of regulatory provisions including…the payment of impact fees; the content of permit applications, well site construction (and more).

No current party to this case must actually plan for, finance and comply with Act 13’s extensive list of regulatory requirements. Thus, no party has the same interests as the industry parties.”

Reached Wednesday afternoon, John Smith, one of the lead attorneys who spearheaded the Act 13 challenge on behalf of a handful of communities such as Cecil and Peters townships, a nonprofit and a medical doctor, said:

“In our review, it’s the same argument they have raised and lost in the same court.”

A status conference in the case has been set for Monday in Harrisburg.

Application for Relief[2]