Court maintains injunction on contested land control provisions of new energy law

By Ellen M. Gilmer

E&E Publishing

Townships in the midst of a legal challenge over thorny provisions in Pennsylvania’s oil and gas law breathed a sigh of relief yesterday as judges ruled to maintain a ban on state enforcement of those provisions during the case’s ongoing appeal process.

The Pennsylvania Commonwealth Court initially placed an injunction on enforcement of the contested section of Act 13 during proceedings in April, and last month it ruled in favor of municipalities that argued the law trumped local control over oil and gas zoning.

At issue is a part of the law that compels communities to allow oil and gas activity in all zones — residential, commercial, open space, industrial, etc. The Commonwealth Court ruled that the provision was unconstitutional because it would require towns to violate their own zoning plans by not protecting the interests of property owners.

The state Public Utility Commission and Department of Environmental Protection appealed the 4-3 decision the next day, sending it to the state Supreme Court for consideration. The court is expected to accept the case.

But attorneys for the townships became antsy at the prospect of an obscure appellate rule in Pennsylvania that allows for existing injunctions to be set aside in favor of the state — including the agencies in this case. In the case of any appeal, the state has what is known as automatic supersedeas, or dismissing injunctions until the higher court has ruled. That means, in theory, that Pennsylvania could enforce the struck-down portions of Act 13 for the duration of the appeal

Past judges have said the rule is not absolute, though, and petitioners may ask to have it vacated. Attorneys for the townships filed such a motion earlier this month, telling the Commonwealth Court that “it is plainly apparent that this convoluted outcome cannot be justified by the terms of the rule.”

In the application, the petitioners had to establish that they had a reasonable likelihood to win the appeal, that they would suffer irreparable harm without the continuance of injunction and that there would be minimal harm to the public by maintaining the injunction during the appeal.

“This ruling prevents the chaos that would have ensued if the [Gov. Tom] Corbett administration and gas companies got their way,” Jordan Yeager, attorney for the petitioners, said in a statement. “We are pleased that the Court has once again reaffirmed gas company profits do not trump the constitutional rights of Pennsylvania residents and property owners.”

Attorneys for the state agencies will now focus on an approach for the appeal. Both sides have filed requests for speedy review during the state Supreme Court’s October session in Pittsburgh.

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August 2012