Act 13 Ruling, Observations and Path Forward

“Act 13’s unauthorized use of the public trust assets is unprecedented and constitutionally infirm” ~ Chief Justice of Pennsylvania Ronald D. Castille

“Act 13 makes it easier for Chevron to establish a drilling rig in the middle of a corn field than [for] a church to build a small ten-pew worship space in the same field.” ~ Pennsylvania Justice Max Baer.

Appeal Already?

Less than a month after PA Supreme Court issued its historic Dec 19, 2013’s 162-page ruling against PA’s Act 13, on Jan 2, 2014, Pennsylvania and its Department of Environmental Protection appealed it. Reuters reports that PA is requesting remand “for further evidence, exhibit and testimony”.

The details are just coming out, but already plaintiffs’ lawyer, Jonathan Kamin says DEP and PUC “have “an inappropriate stake” in the gas drilling law. When would you ever see a body charged with protecting the environment … ask for less standards?”

http://www.pennlive.com/midstate/index.ssf/2014/01/natural_gas_drilling_pa.html

PaForestCoalition.org has provided its listserv members a copy of the Commonwealth’s Application for Consideration, thanks to Bob Donnan!  Donnon has just retired from his landscaping business & uses his new-found spare time wisely:

PA Application for Consideration

What is known is that after more than 160 pages of Supreme Court findings, and more than a year of deliberation, PaDEP “contends that the Supreme Court misunderstood how the statutory provisions work separately from each other.” This leads state Rep Jesse White to state: “It’s mind-boggling to me that the DEP is taking such extraordinary steps to advocate for less environmental and constitutional protections:”

http://marcellusmonitor.wordpress.com/2014/01/02/pa-puc-dep-seek-to-overturn-supreme-court-act-13-decision/

Pa. Legal Bills Exceed $550,000 In Dispute Over Shale Drilling Law

Feb 11, 2013 — HARRISBURG — With a state Supreme Court ruling still pending regarding the legality of the Marcellus Shale gas drilling law passed last year, billing documents show that the case already has cost the commonwealth more than $550,000. Those costs stem from hiring an outside legal firm, Philadelphia-based Conrad O’Brien, to represent the state DEP and the PUC in the lawsuit brought by a group of mostly Western Pennsylvania towns…, which they argued hinders their abilities to protect residents through the law’s restrictions on how they craft local zoning rules. ~ (citation: Pittsburgh Post-Gazette)

http://www.marcellus-shale.us/Act13-of-2012_HB1950.htm

Shaky Grounds

The basis for the Commonwealth’s request to remand its highest court’s decision is unclear. The Morning Call on Jan 6 reports that “The defense team, represented by state and private lawyers for the administration, DEP and state attorney general’s office, could have asked the Supreme Court to reject the plaintiffs’ constitutional appeal. It didn’t. “There is no claim of waiver by the Commonwealth … In our review, we are not constrained by the Commonwealth Court’s reasoning and may affirm on any grounds, as long as the record supports the judgment,” Castille wrote:

http://www.mcall.com/news/local/mc-pa-corbett-supreme-court-fracking-constitution-20140105,0,1476063,full.story

The Pittsburgh Post-Gazette puts it most succinctly: “The request should be rebuffed. Act 13 has had its fair day in court and the commonwealth lost.”

http://www.post-gazette.com/opinion/2014/01/05/Fracking-revisited/stories/201401040012

What If?

If it stands, though, and combined with a solid Community Bill of Rights, the ruling has a lot of potentially precedence for future protections – or at least adequate compensation – for We The People:

“The type of constitutional challenge presented today is as unprecedented in Pennsylvania as is the legislation that engendered it. But, the challenge is in response to history seeming to repeat itself: an industry, offering the very real prospect of jobs and other important economic benefits, seeks to exploit a Pennsylvania resource, to supply an energy source much in demand. The political branches have responded with a comprehensive scheme that accommodates the recovery of the resource. By any responsible account, the exploitation of the Marcellus Shale Formation WILL produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” Page 118 of 162, Pennsylvania Supreme Court’s ruling Dec 19, 2013 against PA, its PUC, its Atty General, and its DEP Secretary. Ruling is in response to an appeal of a lower court ruling.  This example has many counterparts in The Complete Ruling:

http://stateimpact.npr.org/pennsylvania/2013/12/19/state-supreme-court-strikes-down-act-13-local-zoning-restrictions/

We The People of PA have our Supreme Court on record that: “exploitation of the Marcellus Shale Formation WILL produce a detrimental effect.” We The People must use this to hold our elected legislative and executives to ensure Pa. Const., Article I, Section 27 is upheld. It will be hard to do that with status quo.

Robinson Twp was one of the municipalities that sued and beat our Commonwealth on the constitutionality of our laws. Funny how they knew the constitution better than the PA Gov and legislature:

Coppola, a Republican supervisor in Robinson Township, said Act 13 was an affront to local governments. “I will say this as a Republican: Every Republican who participated in this should be out of office, including the governor,” he said. “It was so blatantly unconstitutional a thing to do, I still can’t believe it.”

http://www.philly.com/philly/business/20131220_PA__Supreme_Court_jolts_shale_industry.html

What If is Here. It’s Called: Now What?

Berks Gas Truth founder Karen Feridun announced on FaceBook, Feb 21, that:

Supreme Court Rejects Corbett Administration’s Motion for Reconsideration of Act 13 Decision. It was by by 5-1 majority, with only Marcellus cash recipient Justice Saylor dissenting (more on “Dissenters and the Cash Thereto” below). Jordan Yeager, one of the lead attorneys on the case stated, “The Corbett Administration wanted a “do-over”. The Supreme Court said “no”. Maya van Rossum, the Delaware Riverkeeper was jubilant: “Once again the primary rights of clean air, water, and a healthy environment for the people of the Commonwealth have been reiterated.”

That is it folks, unless the Corbsters can twist it into Federal Constitutional issue and take it to SCOTUS – and with enough time and our cash, they could try. Otherwise: OUR PA Constitution still applies to We The (actual, human) People in PA. Imagine.

Speaking of rights to a decent life, this guy is ensuring his:

Rex Tillerson, head of @ExxonMobil fights fracking in his town. He cites noise nuisance and traffic hazards.

http://stateimpact.npr.org/texas/2014/02/21/not-even-the-head-of-exxon-wants-fracking-operations-in-his-neighborhood/

If Tillerson has a right to a life in which noise and traffic hazards are minimized, folks should enjoy life without air and water pollution. Even those without armies of lobbyists and bags of campaign bribery…err, donations.

“Agriculture, Communities, and Rural Environment” (ACRE), Act 38 of 2005

This great moment for local control and our constitutional rights could be just the beginning. The very next day, former DEP Secretary Dave Hess’ blog published “Analysis: Landmark Court Opinion Turns Environmental Regulation In PA Upside Down.” Therein, he said other statewide statutes – most visibly ACRE – also preempt municipal regulation. “their legal status may be in doubt as a result of the opinion” that Act 13, the Marcellus Shale drilling law, is unconstitutional.

http://www.paenvironmentdigest.com/newsletter/default.asp?NewsletterArticleID=27348

ACRE is of course the reason CAFOs are shoved right up against small farms and rural homes that have stood for decades. Local folks are powerless to stop them, and the property values nearby are reduced to essentially nothing, so the long-time residents can’t even move. If the court agrees that CAFOs will produce detrimental effect, it also is a unconstitutional overstep of Art I, Sect 27, by this very precedence.

PA Municipalities Planning Code

A concise interpretation of how the Act 13 ruling affects community rights to regulate land use, to ensure individual rights to clean air, dirt and water follows:

http://www.celdf.org/faqs—pennsylvania-supreme-court-ruling-on-act-13

Per CELDF, ACRE and Act 13 are not alone in subjugating We The People to for-profit endeavors: “In addition, several amendments to the State’s Municipalities Planning Code (MPC) – adopted in 2000 – override zoning ordinances in favor of mineral extraction, factory farms, and timber harvesting.”

Endangered Species and Greenhouse Gases

Duquesne University law professor Bruce Ledewitz recently told The Morning Call that the ruling could hinder proposed House Bill 1576 and Senate Bill 1057, the Endangered Species Coordination Act ( coverage of those bills: https://steventodd.wordpress.com/2013/11/09/endangered-species-coordination-act-is-worthless-as-teets-on-a-bull/ ), and “open the state to legal claims it is not doing enough to limit industrial greenhouse gas emissions” (linked above, in “Shaky Grounds”)

PEDF v. Corbett

PEDF Counsel John Childe recently summed up the implications of the ruling on its pending case against the Commonwealth. PEDF v. Corbett declares that PA’s Governor has the “Duty to Conserve and Maintain those Public Natural Resources for the Benefit of the People”:

“There are actually four opinions in the Supreme Court Decision. Three of the six justices who voted signed a 162 page opinion finding that the three provisions of Act 13 that took away municipal authority to deal with gas extraction were unconstitutional because of violation of Art. I Sec. 27. A fourth justice joined in the three-justice decision, not because of violating Art. I Sec. 27, but because of due process.

Two other justices voted against the decision and argued that Act 13 is constitutional. So the actual decision of the Supreme Court is only that the Act 13 provisions are unconstitutional, not that they are unconstitutional because of Art. I Sec. 27.

What this means for PEDF’s current lawsuit is that all the language of the three justice opinion on Art. I Sec. 27 is not Supreme Court precedent; it is not new law. But it is very powerful guidance, both for the lower courts and for the Supreme Court, in future cases.

And the first case that will deal with Art. I Sec. 27 issues raised by the Supreme Court opinion is PEDF v. Governor Corbett. While PEDF is using the same principles that the Supreme Court dealt with, the decision in PEDF v. Corbett will become the new law regarding Art. I Sec. 27.”

Details of the case of PEDF v. Corbett are here: http://www.pedf.org/current-litigation.html

Industry Spokesperson Misses the Point of Local Control

What Marcellus Shale Coalition President Spigelmyer overlooks is the entire reason for local land use control:

http://www.pennlive.com/opinion/index.ssf/2013/12/act_13_ruling_marcellus_shale_coalition_response_shale_drilling_pennlive_letters.html

Just as I’m sure a porn shop or strip club creates wonderful jobs and economic opportunity, there may be parents out there who – even on balance – don’t want them next to the school and church. In the event those folks don’t, and recognizing that they can’t prohibit any land use outright, they should be able to put them where they will do minimal harm. And with every, single land use, except a very few like fracking and factory farms, We The People can. Those industries have bought for themselves representation We can not afford for ourselves, and it is damned lucky that PA is one of the few US states where the right to clean air, dirt and water is enshrined in our Constitution. Otherwise, the little scam known as Act 13 would almost certainly have worked.

Dissenters and the Cash Thereto

For those who agree with Coppola, of note in the decision: Justice Thomas G. Saylor, and Justice J. Michael Eakin dissented. Saylor and Eakin’s dissent notes “the authority of the General Assembly to make basic, rational policy choices—through the democratic process—that balance the various and potentially conflicting purposes of Act 13.”  Saylor and Eakin are reported to have grabbed a cool $1,000 and $1,625, respectively in “donations” from “Marcellus Shale natural gas industry PACs and executives.”  True, these amounts pale against PA Governor Tom Corbett’s $1,813,305.59, or the paydays of powerful Senators Scarnati (R) and Solobay (D), or State Representatives Turzai (R) and DeWeese (D, subsequently found guilty on corruption charges).  They should nonetheless not be ignored by the discerning voter – few of whom can afford such largess:

http://marcellusmoney.org/candidates

Food for thought in the next judicial election. Saylor’s term is up in 2017. Eakin’s is up in 2018. This ruling certainly will be a substantial strike against for the retention campaigns of Saylor and Eakin to overcome, among the fracktivist community. A diverse, and previously unorganized group, who often seem to share only passion for politics and activism on all issues fracking. Voting turnout among fracktivist ranks is likely exceptionally high.

Legal Analysis

http://blogs.law.widener.edu/envirolawcenter/2013/12/21/the-pennsylvania-supreme-courts-robinson-township-decision-a-step-back-for-marcellus-shale-a-step-forward-for-article-i-section-27/

http://www.law.com/jsp/pa/PubArticlePA.jsp?id=1202634065478&thepage=2&slreturn=20131121134839

http://jurist.org/paperchase/2013/12/pennsylvania-supreme-court-rules-portion-of-shale-drilling-law-unconstitutional.php

http://hblaw.com/blog/energymatters/pa-supreme-court-says-act-13-violates-environmental-rights/#sthash.OSp3AKZ1.dpuf

Summary of Press Articles

http://jordanyeager.tumblr.com

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About steventodd

Both parties are broken by big money...what to do? I'm a dad, husband, son, taxpayer, voter, civil engineer, reporter, blogger, rabble-rouser and honest guy.
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2 Responses to Act 13 Ruling, Observations and Path Forward

  1. Jay Sweeney says:

    Good job Steve! ACRE was going through my mind as well. It is very similar to Act 13 in it’s usurping of the authority of municipalities.

    Like

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