A Commonwealth Court judge has barred industry groups, drillers and legislators from intervening in a suit filed by seven Pennsylvania municipalities and the Delaware Riverkeeper Network that alleges the recent zoning-related amendments to the state’s Oil and Gas Act are unconstitutional.
Keith B. Quigley, a visiting judge on the Commonwealth Court, wrote in a 13-page opinion and order issued Friday afternoon in Robinson Township v. Commonwealth that the oil and gas industry’s interests should not be a factor in the case.
HB 1950, which was signed into law as Act 13 of 2012 on Feb. 14, prohibits local municipalities from enacting zoning ordinances aimed at banning drilling and restricts ordinances “that are more stringent than the conditions, requirements or limitations imposed on other industrial uses or other land development within the particular zoning district where the oil and gas operations are situated within the local government.”
On March 28, the Washington County townships of Robinson, Peters, Cecil and Mount Pleasant, along with South Fayette Township in Allegheny County and Yardley Borough and Nockamixon Township in Bucks County, as well as the Delaware Riverkeeper Network, filed suit against the state, the Pennsylvania Public Utility Commission, the Office of the Attorney General and the Department of Environmental Protection.
In April, the Pennsylvania Independent Oil and Gas Association, the Marcellus Shale Coalition, MarkWest Liberty Midstream & Resources, Penneco Oil Co. and Chesapeake Appalachia filed a petition for leave to intervene in the case.
Around the same time, state Senator Joseph Scarnati III, R-Warren, and state Representative Samuel H. Smith, R-Jefferson, also filed a petition to intervene.
But Quigley denied both petitions on Friday, saying neither the industry’s interests nor the legislature’s input should affect the outcome of the case.
“All parties acknowledge it is the commonwealth’s duty to defend the constitutionality of Act 13,” Quigley wrote. “Act 13 is either constitutional or unconstitutional based on the legal theories petitioners advance. The industry’s interests, as identified, have no bearing on that determination.”
Likewise, Quigley said there’s no reason the constitutionality of Act 13 could not be determined without the legislators’ help.
“Here, there is no suggestion that the purposes of Act 13 cannot be ascertained by the traditional methods of statutory construction,” he said.
The plaintiffs in Robinson Township alleged that Act 13 “eliminates the role municipalities must play in protecting the health, safety and welfare of their communities” and transfers that regulatory power to the oil and gas industry itself.
“Whereas municipal officials previously exercised their proper police powers to ensure the safety of their residents, the oil and gas industry has been given a blank check and the ability to develop municipalities as industry deems fit without oversight or any regard for a municipality’s comprehensive plan, the tax base, orderly development or the people of the local community,” the petition said.
The petition further alleged that Act 13 is a “special law” that unconstitutionally singles out the oil and gas industry for favorable treatment.
According to Quigley, Scarnati and Smith argued in their petition that they have an interest in defending Act 13′s legislative intent in the case.
But Quigley said that does not constitute a “legally enforceable interest” under Rule 2327(4) of the Pennsylvania Rules of Civil Procedure.
Meanwhile, the industry groups and drillers argued in their petition that their interest in the suit lies in their investments of money, manpower and equipment, which Quigley also dismissed as not meeting the requirements of Rule 2327(4).
Quigley did admit that the industry still falls into the class of people that can intervene under Rule 2327(4) because some industry members’ property interests will be affected by Act 13, but denied intervention on the grounds that the industry’s interests are already adequately represented by the state.
Counsel for the plaintiffs, John M. Smith of Smith Butz in Canonsburg, Pa., said he and his clients “are very pleased with Judge Quigley’s order as it will serve to expedite a decision on the merits relative to the constitutionality of the statute.”
Counsel for the industry members, Walter A. Bunt Jr. of K&L Gates in Pittsburgh, could not be reached for comment at press time, nor could the legislators’ attorney, Devin J. Chwastyk of McNees Wallace & Nurick in Harrisburg.
A spokesman for the Marcellus Shale Coalition said Friday that the group was “disappointed by today’s decision and are currently reviewing potential next steps.”
“We remain steadfast in our commitment to responsibly develop clean-burning, job-creating natural gas resources for the benefit of all Pennsylvanians and the nation,” he said.
The Act 13 amendments not related to zoning, such as those imposing impact fees on drillers, took effect on April 14 as scheduled, but Quigley granted a preliminary injunction on April 12 barring the amendments related to zoning from taking effect for 120 days.
(Copies of the 12-page opinion in Robinson Township v. Commonwealth, PICS No. 12-0775, are available from The Legal Intelligencer. Please call the Pennsylvania Instant Case Service at 800-276-PICS to order or for information.) •