On February 21, 2014, the Pennsylvania Supreme Court declined reconsideration of its December 19, 2013 decision striking down a number of provisions in the State’s 2011 hydraulic fracturing law known as Act 13. As we previously reported, the law made substantial changes to the state’s oil and gas laws, some of which the Court determined to be unconstitutional.
The Pennsylvania Public Utility Commission and Department of Environmental Protection asserted in their application for reargument/reconsideration that the Court overreached by “making sweeping factual conclusions” regarding the impact of certain Act 13 provisions at issue that were unsupported by the record below, rather than simply clarifying the new balancing test to be applied on remand after additional factual developments occurred in the case. They similarly argued the Court’s decision regarding the severability of Sections 3215(c) and (e) of Act 13 should be remanded for consideration along with the other severability issues identified for remand. Not surprisingly, the Robinson Township parties responded that reargument or reconsideration was unnecessary as the Court made “purely legal determinations”, that any findings of fact “were supported by a well-developed record”, and that remand to determine the severability of Sections 3215(c) and (e) of Act 13 was unncessary.
While the Court did not elaborate on its basis for denying reconsideration, in his dissenting statement, Justice Thomas Saylor agreed with the Public Utility Commission and Department of Environmental Protection that remand was appropriate: “The judiciary simply does not possess the ability to devine the consequences of a legislative enactment absent a developed factual record.”
After the December 19th decision, Pennsylvania Governor Tom Corbett issued a statement expressing disappointment that the Court struck down portions of what he considered to be a “bipartisan accomplishment” but vowed to “continue to work with members of the House and Senate to ensure that Pennsylvania’s thriving energy industry grows and provides jobs while balancing the interests of local communities.” Without the possibility of reconsideration, the donut holes in Act 13 resulting from the Court’s decision will remain. Additionally, with the case pending on remand to address the remaining severability issues, it remains to be seen whether the Pennsylvania government will need to return to the drawing board entirely to rethink its hydraulic fracturing regulations to meet the Corbett Administration’s stated goals.