Corbett administration asks justices to reconsider Act 13

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The Corbett administration has asked the state Supreme Court to reconsider its recent landmark decision declaring major portions of the state's Marcellus Shale gas drilling law, Act 13, unconstitutional.

A news release from the state Office of General Counsel, issued Thursday afternoon, said the 162-page Supreme Court decision written by Chief Justice Ronald Castille "made its own sweeping factual findings" that were unsupported by the case record.

The release, attributed to James Schultz, general counsel to the governor, also said the decision is "a stunning departure from the historical practice of that Court, and an unrestrained venture into a fact-finding role that the Court always has insisted is not its proper place in the judicial system."

In filing for the appeal, the state's Public Utility Commission and Department of Environmental Protection asked that the case be remanded or returned to Commonwealth Court for development of an evidentiary record. The DEP also asked the Supreme Court to reconsider its decision to declare unconstitutional certain provisions protecting public lands and waters of the commonwealth.

The Supreme Court, in a 4-2 vote Dec. 19, sided with seven Pennsylvania municipalities, a doctor and a river advocacy organization in declaring Act 13's provisions allowing shale gas drilling anywhere, overriding local zoning laws, unconstitutional. The court also declared that the doctor had standing to challenge the laws medical "gag order" that prevented doctors from telling patients about health impacts related to shale gas development, as well as a constitutional challenge that the law benefits a single industry.

Jonathan Kamin, co-counsel with John Smith for the municipalities and other appellants, said the decision by the administration to appeal was both "bizarre" and "disappointing."

A joint statement issued by Mr. Kamin and Mr. Smith said, "The PUC's and DEP's Request For Reconsideration so that it can implement and utilize unconstitutional legislation is an affront to the Citizens of Pennsylvania, and truly demonstrates the Executive Agencies' inappropriate stake in this legislation."

Mr. Kamin said it was odd that a department -- DEP -- charged with protecting the environment was asking the court to reinstate a law that wasn't protective of it. He also said that the administration's characterization of the opinion as poorly reasoned was "an affront to the citizens of Pennsylvania and the [Supreme] Court."

The Supreme Court can turn down the administration's request. And, in fact, while reconsideration requests are often filed, it is uncommon that they are granted.

The release by Mr. Schultz said granting the reconsideration and remand request of the decision, which for the first time used a balancing test to enforce protections included in the state constitution's Environmental Rights Amendment, would "give Act 13 its fair day in court..."

Joshua Maus of the office of General Counsel said the request was for an expansion of the remand ordered by the court on the issues of the medical information provisions in the law and the water setbacks to also include the Environmental Rights Amendment portion of the decision.

"We believe the Supreme Court skipped some steps here," Mr. Maus said. "So we want to expand the remand to allow Commonwealth Court to allow for findings of fact from both sides in an evidentiary hearing."

But George Jugovic Jr., chief counsel for Citizens for Pennsylvania's Future and a former DEP regional director, said the administration didn't request an opportunity to present evidence when the case was originally before Commonwealth Court and instead requested an expedited decision.

"This is all really about the fact that the administration is unhappy with the Castille opinion," Mr. Jugovic said. "A large part of this case is already slated to be remanded, and it looks like the administration is going out of its way to handcuff the DEP from protecting the waters of the commonwealth."

Mr. Jugovic said if the DEP is serious about protecting the state's waters, the department can include development restrictions in individual drilling permits, issue protective policies for waterways or regulations consistent with the legislative intent of the law that was declared unconstitutional. He also said the state has an obligation under federal law to protect its waterways and wetlands.

Don Hopey: or 412-263-1983.

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