VICTORY! Application for reargument denied! Pa. Supreme Court will not reconsider Act 13 decision

Act 13 ruling buoys residents near Trax Farm gas well, Union Township homeowners want more local control by Anya Litvak, February 22, 2014, Pittsburgh Post-Gazette
On Dec. 19, the Baumgardner family began to hope again. It was a rare good day among four months of bad days for a family living 500 feet from a Marcellus Shale well pad. On that day, the Pennsylvania Supreme Court declared unconstitutional parts of Act 13, which limited local zoning control in favor of a statewide standard guiding where natural gas wells could be drilled. Georgann and Gary Baumgardner saw the ruling as a turning point in their struggle against EQT Corp., which began drilling in early November on nearby Trax Farm in Washington County, just over the Allegheny County line. The process has been wafting diesel fumes, noise and vibrations into their home — and seems to be consuming their lives. One day, their bedroom air monitor flashed orange and the odor drove the family out of their Cardox Road house for hours. Another day, their daughter Rachel Cecchini, then eight months pregnant, moved out of the house next door and into a rental home several miles a way — abandoning the painted nursery and her 93-year-old grandfather.

EQT has built sound walls, put residents up in hotels and offered cash settlements, while Union Township has debated the merits of residents’ complaints and the company’s efforts to address them at many public meetings since drilling began. Yet the state Supreme Court ruling may alter the outcome of this intransigent battle. John Smith, an attorney at Smith Butz who successfully challenged Act 13’s municipal zoning restrictions before the state Supreme Court, said the court’s decision has empowered townships to challenge gas development. “Now, the sentiment is not only can we do something about it but we have an obligation to do something about it,” he said.

Mickey Gniadek lives down the street from the Baumgardners and isn’t much bothered by the noise or the industrial activity except for a bad day in early December when he went to pick up his mail and saw a white cloud and smelled chemicals in the air. Then he began to feel as if he couldn’t breathe. “All of a sudden, my chest feels like it’s collapsing on me,” he said. He began to develop red spots on his head, eyes, and cheeks, which took up to two hours to subside.

“We’ve lived here 31 years. They’ve come at the end of October and they took our lives away. We want our lives back.

Some residents have turned on Trax Farm for allowing the well pad so close to their homes, even though Bob Trax, its president, says he had no say in the matter. “I feel bad.” Mr. Trax said. “I pressured [EQT]. I said please settle, please pacify, please make do.

“This is not a blip on our radar,” said Linda Robertson, manager of media relations with EQT. “We have spent a lot of time and energy, and I think there are some people who have understood the attempts we’ve made.”

On all sides of the issue, there’s a sentiment that there’s only so much the company can do to ameliorate concerns given how close the well pad is to the homes on Cardox Road. On Jan. 22, the township called a special meeting to discuss the Trax well. EQT asked residents to bear with it for the next three weeks while the company finished drilling 11 vertical wells, after which it would do another baseline sound survey.

Tony Cecchini, the Baumgardners’ son-in-law, thinks the hotel vouchers and the sound studies are a delay tactic, and he doesn’t have the time. His baby is due March 6.

EQT also has put compensation offers on the table of $50,000 per household. The money comes with the condition that residents will release EQT from any liability having to do with property or health damage. That’s a standard clause for such contracts, noted Ms. Robertson. The majority of residents have taken the deal, Ms. Robertson said. So far, Mr. Gniadek has refused. “I can’t sign this piece of paper,” he says. “You’re basically asking me to give up my life for you — so next time something like this happens again … .”

With the Supreme Court’s decision, the township now feels it can use the sound ordinance in its regulation of EQT’s activities at Trax. For its part, EQT maintains that it never violated the sound ordinance and that its data shows the diesel emissions in the air never got to an “excessive” level, said Natalie Cox, director of corporate communications. “Some people have settled with themselves that this is temporary. ‘I can get through this. In a year, [it] will be back to normal,’ ” she said.

Be ‘a good neighbor’
Mrs. Baumgardner wants EQT to buy her home. She said she wouldn’t feel right selling it to someone else because she can’t vouch for the immediate disturbance or long-term impacts drilling nearby might have on health and property.

Mr. Baumgardner has begun going to other township meetings, waiting until the comment period and recounting his experience living near a well pad. “I’m here as a resident,” his statement goes. “What you’re hearing is not the truth.” He ends it with this: “Act 13 has been declared unconstitutional. The power is back with the people.” [Emphasis added]

[J-127A-D-2012] IN THE SUPREME COURT OF PENNSYLVANIA, MIDDLE DISTRICT, ORDER PER CURIAM

AND NOW, this 21st day of February, 2014, the Application for Reargument or Reconsideration of the Opinions and Order entered by this Court on December 19, 2013, is DENIED.

Pa. high court won’t reconsider decision on state oil and gas law by Michael Sanserino with contributions by Karen Langley, Februray 21, 2013, Pittsburgh Post-Gazette
The Pennsylvania Supreme Court has denied an appeal from the Corbett administration to reconsider its decision on Act 13 that found parts of the state oil and gas law unconstitutional. In effect, the court left in place a decision that said the new rules violated the state constitution. [Emphasis added]

Pa. Supreme Court will not reconsider Act 13 decision by Marie Cusick, February 21, 2014, PA State Impact
Pennsylvania’s highest court threw out sections of the state’s oil and gas law in December, saying they violated citizens’ environmental rights. Pennsylvania’s highest court has denied a request by the Corbett administration to reconsider its recent decision, which found portions of the state’s oil and gas law unconstitutional.

In a 4-2 decision in December, the state Supreme Court court threw out portions of the law, known as Act 13, which restricted local zoning of oil and gas development. One section of the law that was struck down called for statewide rules on oil and gas to preempt local zoning rules. Another section required local governments to allow oil and gas development in all zoning areas. In the majority opinion, written by Chief Justice Ronald Castille, the court determined both those provisions violated the Environmental Rights Amendment of the state constitution, which guarantees Pennsylvanians the right to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” The decision was hailed as a major victory by environmental groups and local governments who argued Act 13 went too far in restricting local authority.

In January, the Corbett administration asked the court to reconsider its decision. Corbett’s General Counsel James Schultz argued 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.

The court issued an order today simply stating, “the application for reargument or reconsideration of the opinions entered by this Court on December 19, 2013 is denied.”

Justice Thomas Saylor filed a dissenting statement. “I respectfully differ with the majority’s decision to deny reconsideration,” Saylor wrote. “The judiciary simply does not possess the ability to divine the consequences of a legislative enactment absent a developed factual record.”

Lauren Williams is an attorney who represented local municipalities who challenged the law. “It’s definitely what we were hoping for,” she says of the court’s refusal to reconsider. “It allows everyone to move on. Particularly from the zoning portion, which was the central aspect of this case.”

There are still a number of unresolved issues. In its December decision, the state supreme court sent several matters back to the lower Commonwealth Court–including whether the rest of Act 13 can stand, without the sections deemed unconstitutional. Neither Governor Corbett’s office, nor the state office of general counsel immediately returned calls seeking comment Friday afternoon. [Emphasis added]

BobSchmetzer • 15 minutes ago
The Supreme Court said It now is settled law. Now to throw out the whole law that was purchased by oil & gas. I want my Doctor to be able to tell me if I was poisoned and by what source. If industry poisoned me, I have a right to sue for my losses ,just like any other loss. According to Act 13, they can not! The elected officials, both D and R that voted for the act 13 need to be exposed. They swore an oath to obey and to defend the constitution. They did not! They have not only failed in their duty’s, but attacked all local governments and put all of Pa. citizens in jeopardy. The lack of respect for homes, businesses, hospitals, schools, etc. is inexcusable. Real best practices is to do the project safely, not destroying the whole state by destroying its drinking water and air, and killing its people and animals.

MommaBeth • 35 minutes ago
😀 😀 😀 Blessing upon the Justices for their Good Sense!

article written before the final decision: PA Supreme Court Act 13 Decision Disappoints The Oil And Gas Industry by Dusty Elias Kirk and Peter H. Schnore, February 19, 2014, mondaq
The Pennsylvania Supreme Court’s December 2013 decision regarding the constitutionality of the 2012 law amending Pennsylvania’s Oil and Gas Act (Act 13) came as a disappointment to the oil and gas industry. …

The Court struck down a number of significant Act 13 provisions on constitutional grounds that include:

  • The local zoning pre-emption provisions.
  • Restrictions on what local governments can regulate so as to promote the efficient development of oil and gas resources.
  • Provisions that require the PA Department of Environmental Protection (DEP) to grant waivers of certain well setback requirements.
  • Provisions that restrict a municipality’s right to appeal DEP waivers while allowing such appeals by oil and gas companies.

Significantly, while a Court majority struck these provisions, the justices disagreed on why the provisions were unconstitutional. A majority of justices did not share a common voice on this subject.

Justice Castille, delivering the Court Opinion, stated that the unconstitutional provisions of Act 13 violate individual’s rights and breach the Commonwealth’s trustee duties under the Environment Rights Amendment of the Pennsylvania Constitution. In a landmark decision, Justice Castille compared environmental rights to a due process constitutional right.

Governor Corbett’s administration recently took the unusual step of asking the Court to reconsider its decision. … It is unlikely the Court will consider the administration’s requests on so recent a decision.

How will the Oil and Gas Industry react? In the long term, they will likely make another attempt at favorable legislation. In the short term, drillers will have to immerse themselves in Pennsylvania’s conventional land use development practice. Like real estate developers, the Oil and Gas industry will now have to deal with the large patchwork of local subdivision regulations and local politics. [Emphasis added]

[Refer also to:

VICTORY! December 20, 2013: Pennsylvania Supreme Court Says It’s Unconstitutional For Gas Companies To Frack Wherever They Want; Act 13, Gas Industry Takeover Law thrown out by State’s Highest Court

“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.”

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