HARRISBURG -- Lawyers representing several state agencies argue in a brief filed Tuesday that appellate judges erred in deciding to overturn a portion of the state's new Marcellus Shale drilling law.
The July decision by a Commonwealth Court panel "failed to acknowledge and uphold the supreme authority of the Legislature" and applied an improper legal standard, according to attorneys for the state Department of Environmental Protection and Public Utility Commission.
Their argument came in a 45-page brief filed with the state Supreme Court, where state officials are contesting the lower court's decision that halted limitations on how local governments can set up zoning rules for gas drilling.
The new law, known as Act 13, went into effect in April. It created a per-well annual fee, revamped environmental regulations and outlined which parts of the drilling industry can and cannot be regulated by municipalities.
A set of mostly southwestern Pennsylvania municipalities filed suit challenging the law, arguing that having gas wells and compressor stations in all zoning districts would inhibit their abilities to protect residents.
In addition to the zoning section, the court decision also struck down a provision allowing the DEP to grant waivers to the required distance between a well pad and a water source.
On the zoning provision, attorneys for the DEP and PUC point in part to comments from President Judge Dan Pellegrini at an Aug. 15 hearing, in which he said he looked at other states and found they did not pre-empt local zoning for gas drilling.
Whether other states have similar laws is not relevant to whether the law violates Pennsylvania's Constitution, the attorneys argue.
"As this Court has recognized, the Legislature must be respected in its attempt to exercise its police powers and the power of judicial review must not be used as a means by which courts might act as a 'superlegislature' and substitute their judgment as to public policy for that of the Legislature," the brief states.
Arguments from the municipalities are scheduled to be filed later this month. The Supreme Court has not scheduled a hearing date.
Harrisburg Bureau Chief Laura Olson: firstname.lastname@example.org.