Pennsylvania is asking the state Supreme Court to reconsider some parts of its historic decision on Act 13, the 2012 overhaul of the state’s natural gas drilling laws.
In declaring parts of Act 13 unconstitutional last month, the Supreme Court cited the Environmental Rights Amendment of the state constitution that guarantees clean air, pure water and environmental preservation.
It was seen as a major victory for environmental groups and local governments, and a blow to the Corbett Administration and the oil and gas industry.
In a press release issued late Thursday afternoon, the Office of General Counsel said the court’s use of the Environmental Rights Amendment was a never-before-seen “balancing test” for constitutionality.
Governor Corbett’s General Counsel James Schultz said the court “made its own sweeping factual findings regarding the impact of Act 13″ without giving the state an opportunity to present its own evidence.
In the decision, the Supreme Court sent some provisions of the law back down to the Commonwealth Court, including the question of whether the rest of Act 13 can stand without the portions that had been struck down. Now, attorneys for the state want the lower court consider new evidence against the Supreme Court’s opinion that that natural gas drilling would have a “detrimental effect on the environment.”
Also at issue is part of Act 13 that dealt with setbacks for streams and wetlands. The law ordered the DEP to waive the setbacks if operators were unable to plan well pads to meet those specific requirements, but could present a plan to mitigate impacts to those resources.
The Supreme Court ruled that entire portion of the law unconstitutional, leaving drillers and their attorneys to wonder how the DEP would be able to continue issuing permits.
“The Department contends that the Supreme Court misunderstood how the statutory provisions work separately from each other and asks the Court to direct Commonwealth Court to study that question as part of the other matters it must examine on remand,” Schultz said in the press release.
Jordan Yeager, a Bucks County attorney who represented some of the municipalities that challenged Act 13, had some harsh words for the DEP.
“I think they ought to look at changing their names,” he said. “I think the Department of Environmental Protection should be looking at standing up for the Environmental Rights Amendment rather than challenging it.”
The plaintiffs will respond to the state’s request for reconsideration within 17 days.
Pennsylvania Supreme Court spokeswoman Amy Kelchner says Chief Justice Ronald Castille, who wrote the majority opinion issued on Dec. 19, will be responsible for making a recommendation. Then, the justices will vote on whether or not to reconsider.
You can read the state’s request for reconsideration here: