Municipalities urge Pennsylvania Supreme Court not to reconsider its decision declaring parts of Act 13 unconstitutional

On January 14, 2014, six municipalities and an environmental group filed their answer to the state’s application for reconsideration of the Pennsylvania Supreme Court’s December 19, 2013 decision in which the court struck down major portions of Act 13, P.L. _____, 58 Pa. C.S. §§2301-3504 (a substantial re-write of the Oil and Gas Act) as unconstitutional. In that decision, the court held that the state cannot restrict a municipality’s ability to zone natural gas drilling and to keep natural gas wells out of residential areas.

On January 2, 2014, the state defendants filed an application for reconsideration of this decision, arguing that the court issued” broad factual findings about Act 13” without an evidentiary hearing in which they would have demonstrated how Act 13 satisfies Article I, Section 27 of the Pennsylvania Constitution. Section 27 states: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”

In their answer, the challengers argue that the state defendants had consistently stated that “this matter did not require the Court to make factual findings to determine Act 13’s constitutionality. It is only now, after the [Court’s] thorough analysis of the plain language of Act 13 and of Section 27, that [the state] Agencies claim that factual matters require further development in order to change the outcome in their favor.” The challengers state that the Court’s finding that Act 13 was not properly balanced against Section 27’s protections on the public’s right to clean air and pure water was correct and that the Court should not reconsider its decision.

This case is Robinson Township, et al v. Commonwealth of Pennsylvania, et al, Nos. 63, 64, 72 and 73 MAP 2012 (Supreme Court of Pennsylvania, Middle District, Dec. 19, 2013), appeal from the Order and Opinion of the Commonwealth Court at 284 MD 2012, dated July 26, 2012, 52 A.3d 463 (Pa. Cmwlth, 2012).

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