Energy. Environment. Economy.

State asks Pa. Supreme Court to reconsider parts of Act 13 ruling

A Cabot Oil & Gas rig in Susquehanna County.

Lindsay Lazarski/WHYY

A natural gas drilling rig in Susquehanna County.

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:


  • ed

    I understand the logic of why this was done, but I can’t wait to see what all the local governments do to start killing production of hydrocarbons. Come on, renewable energy sources cannot… CANNOT… make up for the energy that hydrocarbons produce at this point.

    You want to make it more effective and safe? Force the companies to be more accountable for what they do. Now, while the state can’t, local governments can now say “you can’t drill here?” That’s not going to fix the issue. That’s going to create more problems than it’ll fix, with imports/exports, prices, and jobs.

    • democrab

      I highly doubt that Pennsylvanians in general will regret the loss of the wonderful pollution and noise, not to mention idiotic Texas rednecks, that these operations brought to our towns, fields, and wild areas.

      Production of hydrocarbons may be inevitable, but environmental degradation does not have to be. Unfortunately, the hydrocarbon companies would prefer to pollute as much as they can, and get in and out as quickly as possible, so that Pennsylvanians don’t have a chance to question the legacy of garbage and pollution that these companies leave behind.

      I bet that when all is said and done, Pennsylvanians will wonder what they sacrificed so a bunch of already rich opportunists can make a few more bucks and then move on to the next community of poor suckers.

      • ed

        It’s not so much the fat cats sitting around padding their pockets, it’s the absolute boost to the economy. Sure, they get richer by the day. But this is the stuff we need to produce. It’s creating jobs left and right for folks like myself, a 23 year old college student on the doorstep of a job in this very industry.

        Effective methods of controlling leaks need to be in place. Better implementation of casing cementing and the midstream aspects are apparent. While there is some possibility that fracturing causes polluted waters (haven’t seen a conclusive study) the use of water in the industry is actually not that large compared to what others, say, nuclear power for one, use. Even still, technologies for waterless fracturing are being used, one of which is compressed CO2, which reduces the need for water all together in that regard.

        Not allowing for the municipalities to have a say in drilling may not have been the way to go. But certainly, we need this hydrocarbon for the foreseeable future. At least until new technologies come about. I am totally fine with adding regulations to protect the environment and the resources we need, as well as our health in general, but we need the oil and gas that comes from the formations. Imagine what would happen if suddenly the US production of these resources fell sharply.

        I can only hope that whatever happens, it can be done in such a way that drilling can continue and it can be done in safer more effective ways for safety and protection.

        • kimfraczek

          If you had the option to work for a drilling company and a solar company, which would you take? The problem is that, sadly, a 23 year old who needs a job will take what he gets. And the fossil fuel industry controls what is given.
          Allowing municipalities to exercise their democracy is the way to go. You are witnessing people standing up for their health and futures. It’s a shame the companies that don’t live here and create the damage don’t care that good people who do live and work here are the ones to fight for money vs water. I will commit to make sure at 30, you do have a choice to work for a sustainable company. Digging stuff out of the ground to burn it for energy is not how we should be building our future.

          • ed

            I totally agree. It would be ideal to have a fuel source that reduces consequences by a substantial amount, but that fuel is not yet ready to replace the massive energy production that comes from the hydrocarbons. When it is, I’ll stand behind it. Remember, we’re talking massive infrastructure changes when this renewable energy source emerges, from energy and transportation and beyond.

            Right now we need everyone to play ball, and if we want to sustain our current way of life until other methods emerge, drilling and production needs to be done. When I get my job, I will ensure that I will do all I can to keep this stuff out of the air from leaks and lack of attention.

        • American Daegu Warrior

          The effort for municipalities to have a say should have been addressed in all programs, whether engineering or environmental. If PA didn’t originally address this situation in a legal sense earlier, why should they single out a specific program. As my old law school teacher used to say, “Feel good policies make bad laws as both need change to survive the test of scrutiny.”

    • kimfraczek

      Hydraulic fracturing cannot be done safe.
      They also have set up a legal system through lobbying where they don’t have to held accountable for poisoning people, animals, water, land and air.
      You are suggesting that people should not exercise the tiny sliver of democracy that we have left?

      • ed

        No of course not. Fracturing has not yet been totally 100% to blame for damages to water sources, even the DEP I do believe had a study to lay tracers in the fluid and monitor its activity and it remained 5000 feet below the ground a year later. Sure, the chemicals are dangerous, that’s why there are other methods for fracturing being tested in other places.

        The issue at hand is that we need a fuel source to continue producing enough energy until other sources are suitable. The world revolves around this fossil fuel. Natural gas (when done correctly and not lost) produces far fewer emissions.

        Am I saying that I want this to happen forever? No. I’m not dumb enough to say that this will keep us alive forever. At some point, it’s going to run out, at some point, something is going to happen that we need another source of fuel. The current market requires this, and trends show that natural gas and oil are going to increase in production and use until 2040 at least. We have time now to figure out other methods, and we are trying to do it in the best way possible.

        But above all I agree, we need better protection of the environment.

        • American Daegu Warrior

          Well said and stated Ed. Facts, however, is not what drives most of these comments. I don’t think they would even look at the science and hard facts because that would take time and effort. Something that is totally lacking in our college educations now. Once its on the web, its a known fact and can’t be challenged by anyone over 30.

  • craftyfox

    No more fracking! It’s not enviromentaly safe! Its dangerious

    • American Daegu Warrior

      Nice, a slogan instead of facts and science. Next time I’ll get a social studies degree to dis radio and TV.

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