Tag Archives: Act 13 Challenge

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

marcellus monitor

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]

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PA Supreme Court: Sorry, GOP Leaders, You Cannot Intervene in Act 13 Case

State Sen. Joe Scarnati, seen here with Gov. Tom Corbett, left, has no legal standing to intervene in the Act 13 legal battle, the Supreme Court affirmed Tuesday

State Sen. Joe Scarnati, seen here with Gov. Tom Corbett, left, has no legal standing to intervene in the Act 13 legal battle, the Supreme Court affirmed Tuesday

The Pennsylvania Supreme Court on Tuesday ruled that two state GOP leaders still have no place in the court battle regarding Act 13, the law governing Marcellus Shale drilling.

State Senate President Pro Tempore Joseph Scarnati and Speaker of the Pennsylvania House of Representatives Samuel H. Smith, both Republicans, had sought to intervene in the Act 13 challenge.

But the Commonwealth Court “held that the legislators did not have a legally enforceable interest in the action.”

The Supreme Court agreed Tuesday, affirming the ruling.

In the order, the Supreme Court wrote:

Following review of the briefs submitted, the Order of the Commonwealth Court is hereby AFFIRMED.

In this matter, the legislators offer that their purpose for intervening is to defend the constitutionality of Act 13, and to offer evidence and argument with respect to the intent of the General Assembly in enacting Act 13 and to
the procedure by which Act 13 was adopted.

As articulated, the legislators’ interest implicates neither a defense of the power or authority of their offices nor a defense of the potency of their right to vote.

Rather, the legislators simply seek to offer their perspective on the correctness of governmental conduct, i.e., that the General Assembly did not violate the substantive and procedural strictures of the Pennsylvania Constitution in enacting Act 13.

…The interest articulated is not sufficient to support the party standing of legislators in a legal action challenging the constitutionality of a legislative enactment.

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Act 13 Challengers: DEP, PUC Have No Basis for Supreme Court Reconsideration

Courtesy of Robert M. Donnan

Courtesy of Robert M. Donnan

By Amanda Gillooly

Editor

The law firm that led the legal challenge against a Pennsylvania law governing Marcellus Shale drilling activities this week filed a response to a motion two state agencies made earlier this month petitioning the Supreme Court to reconsider its decision that some of those regulations, collectively known as Act 13, were unconstitutional.

Attorneys for Smith Butz, the Southpointe-based firm that represented a handful of municipalities such as Cecil, Peters and Robinson townships, as well as a nonprofit and medical doctor in the challenge, filed the answer Tuesday, writing that, “Citizens respectfully request that this honorable court deny (their) request.”

In the 19-page filing, Smith Butz argues that the state Department of Environmental Protection and Public Utility Commission failed to demonstrate a compelling reason for the court to reconsider its position.

Attorneys wrote:

Reargument before an appellant court is not a matter of right, but of sound judicial discretion, and reargument will be allowed only when there are compelling reasons.”

(The DEP and PUC) presented no compelling reasons for extraordinary relief.

Attorneys from Smith Butz also wrote that the state agencies’ argument for reconsideration revolved around the standard the Supreme Court used to make its determination that portions of Act 13 violated the Pennsylvania Constitution – they specifically allege the court applied a “new” standard.

Smith Butz attorneys disagreed with this logic, writing:

(The standard used by the Supreme Court) follows the plain language of Section 27, which has been a part of the Pennsylvania Constitution for (more than) 40 years.

Agencies clearly recognized this standard, conceding that the Commonwealth…has a duty under Section 27 to conserve and maintain public natural resources.

Agencies also previously recognized that government agencies must ‘balance environmental and social concerns’ and even argued that the General Assembly did the appropriate balancing when it enacted Act 13.’

Yet now, agencies claim that they did not have an opportunity to show how Act 13 satisfies Section 27, and even argue ignorance of a balance test.

To the extent (the DEP and PUC) failed to raise argument in defense of Act 13, they cannot do so now.

A majority of the court recognized that Act 13 reflected that the General Assembly made no effort to account for local concerns or to mitigate localized impact of shale gas on the people ad their public natural resources.

…(the Supreme Court opinion) explained that Act 13’s primarily stated purpose is not to effectuate the constitutional obligation to protect and preserve Pennsylvania’s natural environment. Rather, the purpose of the statute is to provide a maximally favorable environment for industry operators.”

SmithButz attorneys also argue that the request should “be rejected because it would compromise the finality of court’s decision.”

They wrote:

“The court should not sanction an approach to the resolution of cases that does not comport with basic fairness and ultimately erodes finality and judicial economy. Because no compelling reason exists to justify reconsideration, (the DEP and PUC’s) current request fosters undue delay and creates the specter of uncertainty regarding the outcome and effect of this landmark case.”

Editor’s Note: I am having some issues with Scribd at the moment – will get a copy of this thing online ASAP. Sorry for the inconvenience! -amanda

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