In opening briefs filed on April 1, 2014, the Pennsylvania Department of Environmental Protection (“DEP”) and the Pennsylvania Public Utility Commission (“PUC”) urge severability, contending that sections 3305-3309 can be implemented without invalidated sections 3303 and 3304. On April 21, 2014, Robinson Township and its fellow municipalities (“municipalities”) filed a response, arguing that “sections 3305 to 3309 are so entangled with Sections 3303 and 3304 that they cannot stand on their own.” According to the municipalities, “sections 3305 to 3309 create a statewide mechanism for establishing and enforcing sections 3303 and 3304’s statewide, uniform scheme for local regulations of oil and gas development, which is now a nullity.”
Invalidated section 3303 precluded local regulation of oil and gas operations when those operations were governed by state or federal laws, while invalidated section 3304 created a statewide, uniform zoning scheme for local ordinances dealing with oil and gas operations. Section 3305 allows the PUC to review local zoning ordinances for compliance with the Municipalities Planning Code (MPC); sections 3306-3307 provide that an aggrieved person can file a lawsuit to invalidate an ordinance that violates the MPC; section 3308 provides that, for noncompliance with the MPC, impact fees may be withheld from the municipality; and section 3309 gives a municipality 120-days to review and amend an ordinance for compliance.
With the second issue, whether section 3281.1 of Act 13 that exempts drillers from having to inform owners of private water sources in the event of a potentially contaminating spill near their properties is unconstitutional, the municipalities argue in their opening brief that section 3218.1 of Act 13 violates equal protection by excluding notice to owners of private water sources. In its April 21, 2014 response, the DEP points out that “section 3281.1 of Act 13 is but one of the numerous statutory mechanisms through which spill notification and remediation is addressed” and that these mechanisms “adequately protect unregulated private well owners in the event of a spill.”
The Commonwealth Court of Pennsylvania has scheduled an en banc argument for May 14, 2014, at 9:30 a.m. (EDT).
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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.
