Pennsylvania Supreme Court affirms lower court's decision to deny legislators' application to intervene in Act 13 lawsuit

On April 20, 2012, Pennsylvania’s Commonwealth Court denied the application of two Republican legislators to intervene in the lawsuit in which the constitutionality of Act 13, P.L. ___, 58 Pa. C.S. §§2301-3504 (a substantial re-write of the Commonwealth’s Oil and Gas Act) is being considered. The legislators appealed this order to the Pennsylvania Supreme Court, Middle District. After more than 20 months, on January 14, 2014, the high court affirmed the denial of that intervention.

Senate President Pro Tempore Joe Scarnati, R-Cameron/Elk/Jefferson, and House Speaker Sam Smith, R-Jefferson/Indiana/Armstrong, sought to intervene in order 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.” In its order, the Supreme Court stated that “the legislators simply seek to offer their perspective on the correctness of governmental conduct” and held that this interest as expressed by the legislators “is not sufficient to” give them standing in the lawsuit. Citing to earlier case law, the Court held that legislators in their official capacity can only participate as a party in a lawsuit “where there is a discernible and palpable infringement on their authority as legislators,” i.e., to protect the legislator’s right to vote or where the legislator is deprived or restricted in his authority.

This case is Robinson Township, et al v. Commonwealth of Pennsylvania, et al, No. 46 MAP 2012 (Supreme Court of Pennsylvania, Middle District, May 21, 2012), appeal from the Order of the Commonwealth Court at 284 MD 2012, dated April 20, 2012.

For additional information on this lawsuit, see prior blog articles including “Pennsylvania Supreme Court strikes down major portions of Act 13 as unconstitutional.” “Pennsylvania Supreme Court asked to reconsider its decision striking down major portions of Act 13 as unconstitutional,” and “Municipalities urge Pennsylvania Supreme Court not to reconsider its decision declaring parts of Act 13 unconstitutional.”

This post was written by Barclay Nicholson ( or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.