QUESTIONS PRESENTED FOR REVIEW
The questions presented for review are as follows:
1. Does the Commonwealth Court’s treatment of whether fracking is a heavy industrial activity with negative impacts on nearby land as an open evidentiary matter in every case conflict with this Honorable Court’s prior indications that it is and promote arbitrary, Balkanized determinations of the question from political subdivision to political subdivision, creating a proliferation of litigation and legal uncertainty, an issue of such substantial public importance as to warrant this Honorable Court’s prompt and definitive resolution?
2. Is the Commonwealth Court’s determination that although a trial court in determining whether fracking is a heavy industrial activity with negative impacts on nearby land must consider pre-production phases of fracking, a trial court’s failure to do so is excused because it is free to consider them to a lesser degree in light of their relative brevity , defy logic and constitute such an abuse of discretion as to warrant this Honorable Court’s exercise of its supervisory authority?
3. Is the Commonwealth Court’s failure to address Protect PT’s claim that the trial court erred by failing to consider lay testimony from landowners about the negative impacts of fracking on their land such a departure from accepted judicial practices as to warrant this Honorable Court’s exercise of its supervisory authority?
4. Does the Commonwealth Court’s application of a requirement that objectors to a zoning ordinance as violative of a locality’s duties to act as a trustee with regard to its natural resources for the benefit of its citizens pursuant to the ERA prove that the ordinance permits negative impacts on nearby land and therefore unreasonably impairs their rights under the ERA conflict with the Commonwealth’s trusteeship and the fundamental nature of rights pursuant to the ERA, a question of first impression for this Honorable Court, and conflict with earlier administrative and judicial pronouncements providing frameworks that are consistent with the Commonwealth’s trusteeship and the fundamental nature of rights pursuant to the ERA, creating legal uncertainty concerning the proper evaluation of localities’ obligations pursuant the ERA, an issue of such substantial public importance as to warrant this Honorable Court’s prompt and definitive resolution?
Pennsylvania High Court Grants Limited Review Of Mineral Interest Fracking Case by Mealey’s , January 11, 2021, lexislegalnews.com
HARRISBURG, Pa. — The Pennsylvania Supreme Court on Jan. 5 granted allocatur in a hydraulic fracturing case it refused to hear in 2020 and limited its review to evidentiary issues regarding the rights of property owners to develop mineral interests. The decision was included as a note on the docket.
(Protect PT v. Penn Township Zoning Hearing Board, et al., No. 2 WAP 2021, Pa. Sup.)
In 2015, Apex Energy (PA) LLC filed seven applications with the Penn Township Zoning Office seeking special exceptions for fracking wells. Apex proposed to develop well pads on parcels in the township’s Rural Resource zoning district that also lie in the township’s Mineral Extraction Overlay District.
In 2016, after hearings and decisions in which three of the applications were denied, Apex filed suit in federal court against the zoning hearing board (ZHB), the township and the township’s board of commissioners. Olympus Energy LLC joined the suit, which ended with an agreement of the parties that the court approved and incorporated into a stipulation for entry of consent judgment.
Although the parties disagreed on the proper interpretation of the consent judgment, it effectively required Apex to agree to implement a set of conditions on the well pads in exchange for the township, the ZHB and the board of commissioners’ agreement to be bound by certain interpretations of the zoning ordinance and Article I, Section 27, of the Pennsylvania Constitution, Pa. Const. art. I Section 27, also known as the Environmental Rights Amendment.
The ZHB granted the special exception on four well pads: the Backus well pad, the Numis well pad, the Deutsch well pad and the Drakulic well pad.
Protect PT, which bills itself as a citizens group working to ensure its community’s safety, security and quality of life from the effects of fracking, appealed the ZHB’s decision to the Westmoreland County Court of Common Pleas.
The trial court denied Protect PT’s challenge to the ZHB’s decision. Protect PT appealed to the Pennsylvania Commonwealth Court, where the case was heard by a panel comprising Judges P. Kevin Brobson, Christine Fizzano Cannon and Robert Simpson.
Protect PT contended that the ZHB’s decision was unconstitutional to the extent that it permitted unconventional natural gas development (UNGD) in the Resource District.
In 2019, the panel affirmed the trial court’s ruling and said complaints regarding harm to the environment from UNGD should have been addressed to the state agencies issuing permits for UNGD operations.
Protect PT appealed to the Pennsylvania Supreme Court, which refused to hear the petition on May 13, 2020.
The case was sent back to the Commonwealth Court, which on July 6, 2020, affirmed the trial court’s ruling that had been previously appealed. Protect PT filed another appeal with the Supreme Court.
In granting allocator, the Supreme Court specified the nature of the review. The Supreme Court said the petition was granted and limited to whether the Commonwealth Court’s opinion conflicts with its previous application of the capricious disregard of evidence standard, and the review will also consider if the opinion in question creates an issue of such substantial public importance as to require prompt and definitive resolution by the Supreme Court.
The Supreme Court also said it would review whether the Commonwealth Court’s “failure to meaningfully evaluate the cumulative impacts of developing multiple unconventional natural gas wells in close proximity to residential neighborhoods creating high probability of adverse, abnormal or detrimental effects on public health, safety and welfare and significantly altering the character of the community was an abuse of discretion which creates a question of first impression of such public importance” that the Supreme Court should review it.
Protect PT is represented by Timothy Michael Fitchett of Fair Shake Environmental Legal Services in Pittsburgh.
Penn Township is represented by Michael Thurman Korns of Avolio Law Group in Greensburg, Pa. The Penn Township ZHB is represented by John K. Sweeney of the Westmoreland County Public Defender’s Office in Greensburg.
Olympus Energy is represented by Blaine Allen Lucas, Robert Maxwell Junker and Jennifer Lynn Malik of Babst Calland Clements & Zomnir in Pittsburgh. Apex is represented by Jeffrey Glenn Wilhelm of Reed Smith in Pittsburgh.
(Additional document available. Supreme Court order denying previous review. Document #94-200609-003R.)
Refer also to:
2020: Pennsylvania’s Josh Shapiro, Courageous Attorney General who took on The Predator Pedophile Church (catholic), frac’ers and more, sworn into 2nd term: “Justice requires us to have one rule of law — not different rules for different people. Not competing realities.” Try to convince Canada of that.
2020: AG Josh Shapiro criminally charges two more drilling companies, both deliberately hid a spill (“is just the nature of the beast” was the excuse), face five violations of PA’s Clean Stream Law. Will Encana/Ovintiv ‘n CAPP allow an AG like Josh Shapiro in Canada?
2020: DEP data shows bankrupt Chesapeake drilling new wells; Did Chesapeake file for bankruptcy to avoid paying outstanding royalties owed and avoid paying fines for criminal charges possibly up AG Josh Shapiro’s courageous sleeves? The company’s timing is suspect.
2020: Cabot Oil and Gas gets frac’d! Pennsylvania AG Shapiro files 15 criminal charges, including 9 felonies, against Cabot for failing to fix gas wells that leaked methane over 9 square miles into 18 Dimock residential water supplies. “The Grand Jury presentments prove that Cabot took shortcuts that broke the law, and damaged our environment — harming our water supply and public health,”
2020: PA Attorney General Josh Shapiro expending significant investigave resources in pursuit of more than 12 criminal cases involving frac’ing: “some will result in criminal charges in the near future.” Any uncorrupted Attorney Generals in Canada courageous enough to take on frac crimes by Encana (Ovintiv)?
2019: Pennsylvania’s criminal investigation of frac harm cover-upper DEP: AG Josh Shapiro seeking investigative grand jurors from seven counties. How does one get criminal investigation into Encana illegally frac’ing a community’s drinking water aquifers with AER & Alberta govt covering it up, and bullying and shaming the harmed families?
2016: Big Legal Victory in Pennsylvania: Supreme Court rules 2012 law unfairly gave frackers illegal “special” treatment; Declares Act 13 an unconstitutional “special law” benefiting specific groups or industries, including its “physician gag order” restricting health-care professionals from getting information about chemicals that could harm their patients
2014: An opinion for the ages: Pa. Supreme Court strikes a blow for the environment in Act 13 ruling, This may one day be seen as the most important environmental decision ever written by an American jurist
“By any responsible account,” Chief Justice Castille wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.”