The Commonwealth Court has yet to decide whether the remaining Act 13 amendments of 2009 to the Pennsylvania Oil and Gas Act can stand following the state Supreme Court’s ruling invalidating several provisions as unconstitutional, but that hasn’t stopped it from issuing a separate ruling interpreting its original jurisdiction under Act 13 in the meantime.
In early March, the Commonwealth Court ruled in the consolidated cases of Seitel Data v. Center Township, Seitel Data v. Shippingport Borough and Seitel Data v. Greene Township that it only has original jurisdiction under Act 13 to hear challenges to officially enacted township resolutions and agreements.
While Seitel Data marked the first appellate court decision to address the application of Act 13 following the Supreme Court’s December 2013 ruling tossing out several of its provisions, lawyers across the state said they were reluctant to take the Commonwealth Court’s ruling as a sign of anything other than its acknowledgment that, at least for the time being, the parts of Act 13 the high court did not touch remain good law.
The Supreme Court invalidated several provisions of Act 13, including the uniform zoning requirement, in its December 2013 ruling in Robinson Township v. Commonwealth,butremanded the case to the Commonwealth Court to determine whether some or all of the remaining amendments can either stand on their own or must also be tossed out.
“Notably, neither the parties nor Act 13 itself address the potential severability of provisions found unconstitutional,” Chief Justice Ronald D. Castille wrote in a plurality opinion. “Nevertheless, our holding that Sections 3215(b)(4) and (d), 3303 and 3304 violate the Environmental Rights Amendment does not automatically require finding Act 13 unconstitutional in its entirety.”
Castille noted that while there is a presumption under 1 Pa.C.S. Section 1925 that the provisions of every statute be severable, the Commonwealth Court still needs to examine whether the remainder of Act 13 could stand absent the invalidated sections.
“In this opinion, we decide this issue in part, to the extent that its application is obvious and necessary to provide direction to the parties going forward,” Castille said. “Nevertheless, we believe that further inquiry into the continued viability of the entire statute or of discrete provisions, including additional provisions deemed unconstitutional on remand, if any, and guided by additional, targeted briefing from the parties, is salutary and necessary.”
Robinson Township is scheduled for argument in the Commonwealth Court in May.
On March 7, a unanimous three-judge panel of the Commonwealth Court said in Seitel Data that Section 3306(1) of Act 13, which states that “‘any person who is aggrieved by the enactment or enforcement of a local ordinance that violates the [Pennsylvania Municipalities Planning Code], this chapter or Chapter 32 … may bring an action in Commonwealth Court to invalidate the ordinance or enjoin its enforcement,’” clearly restricts the Commonwealth Court’s original jurisdiction to hearing challenges to officially enacted ordinances.
The appellate court transferred the matter to the Beaver County Court of Common Pleas.
On April 8, the court denied a petition for reargument en banc in the case.
Kenneth S. Komoroski, an oil and gas partner at Morgan, Lewis & Bockius’ Pittsburgh office who is not involved in either case, said he thought the Commonwealth Court in Seitel Data properly fulfilled its duty to apply the law as it currently stands.
How the court’s eventual ruling in Robinson Township might change the law in the future was irrelevant to the jurisdictional question before the court in Seitel Data, Komoroski said.
“They were following the law that is in effect,” Komoroski said.
In an email, Michael K. Vennum, a partner in Burleson LLP’s oil and gas title, land use and regulatory practice in Pittsburgh who also is not involved in either case, pointed out a footnote in the Seitel Data opinion in which the court said Section 3302, which preempts local ordinances that seek to regulate oil and gas operations, “remains operative” after the Robinson Township decision.
But, similar to Komoroski, Vennum said the footnote was likely just an acknowledgment that oil and gas operations in Pennsylvania are currently still governed by Act 13.
“I do not read much into that statement, other than the Commonwealth Court recognizes that, at least for now, Section 3302 and other portions of Act 13 that were not struck are still valid (despite the Supreme Court’s directive for the Commonwealth Court to determine if the remaining provisions of Act 13 can stand alone),” Vennum said in the email, adding that “to do otherwise would put the entire Oil and Gas Act on hold and, consequently, no state law or enforceable regulation would be available to govern any form of oil and gas development within the state.”
Blaine A. Lucas, a shareholder in Pittsburgh-based Babst Calland’s energy and natural resources group who penned an amicus brief for the Pennsylvania Coal Alliance in Robinson Township, said in an email that, by narrowly deciding that it had no original jurisdiction under Section 3306 to hear the challenges in Seitel Data, the court did not, and was not required to, address the constitutionality of Section 3306.
Komoroski added that because the Seitel Data court remanded the matter to the trial court, there is the possibility that it could come before the Commonwealth Court again on appeal at some point down the line.
If the Commonwealth Court has issued its decision on remand in Robinson Township by then, that’s when it could have an impact on Seitel Data, Komoroski said.
Even if the Seitel Data ruling can be viewed as an indication that the Commonwealth Court does not plan to toss out Act 13 in its entirety, Jordan B. Yeager of Curtin & Heefner, one of the lawyers representing the plaintiff municipalities in Robinson Township, said neither side in the case is asking for that anyway.
According to Yeager, the parties in Robinson Township had a status conference March 10 before President Judge Dan Pellegrini, during which they identified the specific provisions of Act 13 to be addressed in their briefs.
In a March 13 order, Pellegrini gave the parties until April 1 to file briefs addressing the validity of Section 3218.1, which provides for public well owners but not private water suppliers to receive notice of a spill, and the severability of Sections 3302 and 3305 through 3309, which outline the jurisdiction of the Public Utility Commission to hear challenges to local ordinances.
The Supreme Court ruled in Robinson Township that Sections 3305 through 3309 are invalid to the extent that they seek to apply or enforce the provisions of Act 13 it found unconstitutional.
The March 13 order also directed the parties to address the constitutionality of Section 3241(a), which states that a corporation transporting, selling or storing natural gas is allowed to take property, and Section 3222.1(b)(10)-(11), which prohibits health professionals from disclosing information they receive from drillers about the chemicals used in drilling operations.
Yeager said he didn’t think the Seitel Data ruling offered any indication as to how the Commonwealth Court will rule in Robinson Township.
“Those issues that we’re still left with weren’t addressed by the court” in Seitel Data, Yeager said.
When asked whether the Commonwealth Court could still potentially decide on its own to invalidate Act 13 entirely, Yeager couldn’t say for sure, noting only that the March 13 order was specific about the issues to be briefed.
But if even the slightest possibility exists for the Commonwealth Court to scrap Act 13 completely, couldn’t it have held off on addressing the jurisdictional issue in Seitel Data?
Komoroski said delaying the Seitel Data ruling would have been unnecessary.
Besides, he added, “I can’t recall a single instance where I wanted the Commonwealth Court to wait any longer.”