Challenges to amendments to Pennsylvania’s Oil and Gas Act, prohibiting local municipalities from passing zoning ordinances aimed at banning natural gas drilling, went before the Commonwealth Court on Wednesday in Harrisburg, marking the first time attorneys argued the constitutionality of the closely watched Act 13.
One attorney representing the oil and gas industry told the seven-judge panel that the petitioners had about as much standing to challenge the law’s provisions as his children did to object to their allotted television time.
Pittsburgh attorney Walter A. Bunt Jr.’s remarks came on behalf of several oil- and gas-related organizations that filed as amicus curiae in Robinson v. Commonwealth . Bunt’s arguments followed those of three attorneys for the challengers and two attorneys representing the state.
According to Bunt, the plaintiffs did not have standing to challenge the amendment’s provisions. Rather, any challenges would have to come from individual citizens complaining they face adverse effects of drilling being conducted on a neighboring property.
But President Judge Dan Pellegrini told Bunt that, in the end, those challenges would just find their way back to the Commonwealth Court anyway.
One attorney representing the challengers agreed.
According to Jordan B. Yeager, the act, if left to stand, would leave the court “inundated” with “spot-zoning” challenges from property owners facing the effects of a law the legislature forced their local political leadership to comply with.
Yeager’s remarks came in a rebuttal argument that brought the Robinson case to a close Wednesday, priming it for a decision from the intermediate appellate court as to whether the petitioners can survive their opponents’ preliminary objections.
The challengers — seven municipalities, the Delaware Riverkeeper Network and a Western Pennsylvania doctor — have alleged that Act 13 unconstitutionally robs municipalities of the power to regulate drilling and gives that power to the drilling industry itself.
Under the amendments, they argued, the municipalities cannot pass necessary zoning ordinances that protect their residents from the adverse effects associated with drilling for gas from Pennsylvania’s Marcellus Shale.
As attorney Jonathan M. Kamin put it to the panel, Act 13 represents a “special treatment” for the oil and gas industry from the legislature “like nothing we’ve ever seen before.”
The plaintiffs filed suit against the state, the Pennsylvania Public Utility Commission, the Attorney General’s Office and the Department of Environmental Protection. Following a previous hearing, the municipalities were granted more time to enact zoning laws in compliance with Act 13.
Wednesday’s arguments, following the petitioners’ motion for summary release and the defendants’ preliminary objections, marked the first time constitutionality of the legislation was contested in arguments in court.
Compressed down, the defendants’ position was this: Pennsylvania’s 2000-plus municipalities don’t have a constitutional right to enact zoning ordinances. Pennsylvania property owners, on the other hand, may cite the state constitution in doing with their property as they please.
And that includes letting the drillers come aboard.
In a panel that included seven jurists of the intermediate appellate court, it was Pellegrini, Judge P. Kevin Brobson and newly seated Judge Anne Covey who led the questioning.
The first attorney to argue for the petitioners, Canonsburg, Pa., attorney John M. Smith, told the court that the act sets forth an improper, unconstitutional use of the state’s police powers. By preventing local municipalities from enacting zoning prohibitions against drilling, considering its associated hazards, the legislature had overstepped its bounds.
Toward the beginning of Smith’s argument, Brobson said the constitutional provision before the court was that which limited the state’s power to affect citizens’ rights to build up their property.
Brobson added the attorney appeared to be “turning [the issue] on its head.”
Smith shared the petitioners’ arguments with Kamin and Yeager.
For the state, PUC attorney Matthew Haverstick was joined by Howard G. Hopkirk, who represented the Office of the Attorney General.
At one point in the arguments, Judge Patricia A. McCullough asked Haverstick what would happen to a township like Mount Pleasant if the act were left to stand. Mount Pleasant was one of the four Washington County townships on the docket and, according to McCullough, one particularly affected by the industry’s unrelenting effort to extract the shale’s riches.
Pellegrini soon weighed in to note that the General Assembly, through the act, appeared to be forcing local municipalities into imposing provisions they never wanted in the first place.
“They do it all the time,” Haverstick replied.
This prompted a back and forth between Haverstick and Pellegrini, in which the attorney noted that the court was tasked simply with looking at whether Act 13 was constitutional on its face. This meant Act 13 was subject to a “rational basis” test and Haverstick said the petitioners could not pass.
“Not constitutional as it’s applied?” Pellegrini replied.
Haverstick said the law hasn’t been applied yet.
You’re making them all apply it, Pellegrini said back with a laugh.
The oil and gas industry, under Bunt’s representation, had failed at a bid to intervene in the case, along with top Republican lawmakers, but the court granted the industry a five-minute amicus argument before Wednesday’s panel.
Bunt, the K&L Gates attorney representing the industry, argued on behalf of the Pennsylvania Independent Oil and Gas Association, the Marcellus Shale Coalition, Penneco Oil Co. and MarkWest Liberty Midstream & Resources.
The case started in late March, when four Washington County townships, one Allegheny County township, and Yardley Borough and Nockamixon Township in Bucks County filed suit against the state. The municipalities were joined by the Delaware Riverkeeper Network and Monroeville, Pa.-based Dr. Mehernosh Khan.
The two-month-old lawsuit already has an extensive history.
The Act 13 amendments were set to go into effect on April 14, giving municipalities until Aug. 14 to implement new zoning laws, but Keith B. Quigley, a visiting judge on the Commonwealth Court, said in an order issued April 11 that the municipalities needed more time.
The amendments not related to zoning, such as those imposing impact fees on drillers, were not affected by the injunction order and were not at issue in the lawsuit.
The PUC filed a petition on April 25 asking Quigley to modify his April 11 order to clarify whether the delay enjoins the agency from reviewing existing zoning ordinances to determine whether they violate either the Municipalities Planning Code or Act 13.
Quigley filed a one-page order on April 27 denying the PUC and DEP’s petition and the two agencies appealed to the state Supreme Court.
The court agreed to hear the case en banc on May 9, issuing a one-page per curiam order granting state Attorney General Linda Kelly’s petition for expedited en banc argument as well as the application for amicus curiae participation filed by the industry representatives.
Judges Bernard L. McGinley, Bonnie Brigance Leadbetter and Robert Simpson also sat on the panel.