We previously reported that on July 25, 2013, the Pennsylvania Supreme Court ruled that the state’s Public Utility Commission (“PUC”) cannot evaluate the propriety of local zoning ordinances while the appeal regarding the constitutionality of Act 13’s dictate preventing local municipalities from banning drilling is pending. The PUC has now filed an application for reconsideration, claiming that the court misapprehended the law in that after a case is fully concluded and is on appeal, the trial court order enforcing that enforcement order can itself be appealed. The PUC also asserted that, at the very least, the Court should issue an opinion detailing the legal basis behind its decision to quash the appeal.
The PUC along with the Pennsylvania Department of Environmental Protection also filed an application to resubmit in the pending appeal concerning Act 13’s constitutionality so that a full panel of judges can decide the matter and avoid a split decision that many have speculated about and which would equate to an affirmance. The appeal ensued after a split decision by the Pennsylvania Commonwealth Court in July 2012 that found that the parts of the law enjoining the municipalities from banning fracking were unconstitutional. When the appeal was heard, only 6 justices participated in oral argument back on October 17, 2012. Pennsylvania now has a seventh justice on the Court as of July 30, 2013.
The two agencies argued in their motion that:
“The issues pending in this appeal concern various serious matters of broad Commonwealth importance, including, among others, the relationship between the General Assembly and the municipalities it has created, whether the zoning provisions of Act 13 are a valid exercise of police power to guide reasonable development of the Commonwealth's oil and gas resources, and how much discretion the General Assembly may confer in environmental matters on the Commonwealth's environmental expert, the Department of Environmental Protection.
“The resolution of these issues will impact not only core inter-government relationships, but will also affect communities across the Commonwealth in various economic, social, and environmental ways.
“Because of the importance of the issues pending in this appeal, and in light of the fierce divide among the commissioned judges of the Commonwealth Court as to the constitutionality of the [provision] ... the commission and the department submit that this matter should be considered by the Supreme Court with its full complement.”
For now, the fate of Act 13 and its preemption of zoning ordinances continues to remain in limbo. And while the recent application to resubmit will likely increase the wait for a final decision on whether Act 13 can constitutionally preempt local bans on drilling, if granted, the fears concerning a split decision and thus, affirmance, will be avoided.