One of the most highly debated issues facing states recently has been the legality of local fracking bans. In response to this issue, the Pennsylvania legislature opted to amend the state’s Oil and Gas Act by adding Act 13. Act 13 imposed a statewide regulatory scheme for oil and gas operations and prohibited localities from enacting any contradictory drilling ordinances.
In 2013, however, the Pennsylvania Supreme Court issued a split decision in which it held that a number of provisions of Act 13, including the provisions governing oil and gas operations, were unconstitutional. Recent events have sparked hope in some that the Supreme Court will alter its jurisprudence on fracking.
Two of the Supreme Court justices who voted in favor of striking down portions of Act 13 recently retired. Robert Powelson, chairman of Pennsylvania’s Public Utility Commission (PUC), has expressed his desire that in light of the absence of the retired justices, the Supreme Court will reconsider its ruling on Act 13.
According to Powelson, under the current system, drilling operators could be forced to comply with varying standards because localities would have the authority to enact contradictory drilling ordinances. It is therefore imperative, in Powelson’s view, that the Supreme Court agree to hear another appeal involving Act 13.
Currently pending before the Supreme Court is a decision on remand from the Court’s earlier opinion concerning Act 13. A state appeals court ruled that the PUC lacks the authority to oversee local rules governing drilling operations to ensure that they comply with Act 13. In the suit, the PUC argued that it had the authority to assess local ordinances governing drilling activities despite the Supreme Court’s prior ruling that invalidated several portions of Act 13. The Supreme Court has not yet decided whether it will hear the appeal.
Read the Supreme Court’s 2013 opinion and the appellate court decision.
This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713 651 3662) and Johnjerica Hodge (johnjerica.hodge@nortonrosefulbright.com or 713 651 5698) from Norton Rose Fulbright's Energy Practice Group.
