Getting our Act 13 together

September 19, 2013

Any lawyer reading this probably will take issue with my simplistic notion, but it seems to me a fundamental role of a Supreme Court is to provide finality to legal disputes.

Of course, the court may, on occasion, revisit an issue and provide further clarity. But for the most part, its decision settles the matter for a reasonable period of time. People may question the court’s wisdom, but at least a decision allows things to move forward.

It is for that reason I disagree with some municipal stances regarding the courts and Act 13.

Act 13 established uniform state regulation to manage natural gas development and limited the role of local zoning ordinances. However, in March 2012, Peters Township, Cecil Township and several other communities filed suit in Commonwealth Court, challenging the act’s limits on them. The lower court found in favor of the municipalities, prompting the state to appeal to the Supreme Court.

Here is where it gets interesting.

Arguments were made last October before six rather than the usual seven Supreme Court justices owing to the suspension of Justice Joan Orie Melvin. As yet, no decision has been rendered. Now that a seventh member has been appointed to replace Orie Melvin – giving the high court its full complement of justices – the state has petitioned to have the case reheard before the full court.

Some municipal offices involved in the original suit, object to the rehearing as an attempt for a “do over.” Why? Because they believe the court was deadlocked at 3-3 after the first hearing and a tie vote means the lower court ruling favoring the townships would be upheld. But that is only speculation.

Even if the officials’ count is correct, a tie vote would be a terrible outcome. These issues deserve the finality a split decision would not achieve. Had the Supreme Court declined to hear the case, the Commonwealth Court decision would be the final word. But that is not what they did; the Supreme Court took the case. We deserve a decisive vote that prevents the shadow of regulatory uncertainty from creeping over the natural gas industry and impeding its development.

There is a sense among a small minority of municipal officials that the industry has not been a good neighbor. I respectfully disagree. We have been involved though the chamber of commerce with numerous efforts by the industry to reach out to community leaders, businesses and Washington County residents to address issues of concern. Equally as important, the industry’s spending, tax generation, job creation and charitable activities have benefited Washington County and its municipalities – even the ones involved in the original lawsuit, interestingly enough.

Townships understandably want control over development within their jurisdictions. But natural gas development is not the same as permitting a building or residential development. With natural gas, we are developing a resource from geologic formations whose limits are not defined by township boundaries. The wells, compressors and other infrastructure needed to efficiently develop this resource are a system whose scope is regional, not local. Only a regulatory system that provides continuity across Pennsylvania’s numerous political subdivisions ensures that development will occur in both an orderly and an efficient way.

Balkanizing regulation township by township invites confusion and uncertainty that, in the long run, risks the opportunity that this once-in-a-lifetime development creates for Washington County.

Jeff Kotula is president of the Washington County Chamber of Commerce.



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