Parties asking to intervene in Act 13
Several members of the oil and natural gas industry are petitioning the state Commonwealth Court for permission to intervene in the Act 13 case.
Marcellus Shale Coalition, Pennsylvania Independent Oil and Gas Association and American Petroleum Institute asked the court Wednesday to consider adding them as respondents to a case that will determine the severability of Act 13, the state law governing oil and gas drilling.
Last December, the state Supreme Court struck down key zoning provisions of Act 13 and remanded several other provisions of the law back to the lower court for consideration. Industry parties argued they have a “legally enforceable interest” in the case outcome and said their views are not necessarily aligned with those held by Commonwealth parties, such as the state Department of Environmental Protection and Public Utility Commission.
“The industry parties, and their unique protectable interests, are currently unrepresented in this litigation, yet they remain statutorily obligated to comply with Act 13’s remaining provisions and implementing regulations and to pay the impact fee imposed by Act 13,” read the industry parties’ application. “The industry parties should be permitted to intervene in this case on remand to protect their undeniably unique and legally enforceable interests.”
Kevin Moody, general counsel for PIOGA, said industry parties tried to intervene in the Act 13 case from the beginning. He said the Commonwealth Court recognized that industry parties had a legally enforceable interest, but ultimately ruled the Commonwealth parties would adequately represent the interests of the industry.
“We thought that was wrong, but the case was proceeding on a very fast track,” Moody said, “and while we could have appealed, we just felt there wasn’t sufficient time.”
Moody said he believes they have a stronger case now that more specific provisions are being considered as opposed to the overall constitutionality of the law. Moody said industries don’t agree with the DEP’s stance on regulatory provisions within the law pertaining to well setback requirements and water supplies.
Moody defended the provision of Act 13 that opponents refer to as a “doctor gag rule,” which bars medical practitioners from revealing to their patients a full list of chemicals, or “trade secrets,” used in the hydraulic fracturing process.
“A lot of our members have these trade secrets, so we’re concerned about that,” Moody said.
Stephanie Catarino Wissman, executive director of the state’s API, said their members voluntarily adhere to the section of Act 13 that establishes setback requirements between drilling activity and waterways and wetlands, even though that provision was struck down by the Supreme Court.
“Despite these commitments, because key provisions of Act 13 were struck down in the recent PA Supreme Court ruling, there are significant questions regarding the certainty of investments and ability for the natural gas industry to develop across the Commonwealth that necessitated our motion to intervene,” Wissman said in a written statement.
Industry parties said they paid more than $400 million in impact fees to the Commonwealth in 2011 and 2012, and a large portion of that money went back to local governments. The viability of those impact fees under Act 13 has yet to be determined.
A status conference on Act 13 is scheduled for Monday in Commonwealth Court before President Judge Dan Pellegrini.