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“We hold these truths to be self evident ... That to secure these rights governments are instituted among men deriving their just powers from the consent of the governed.”
Not out of the woods yet!
Date Set: Wednesday, October 17, about 9:30 am, City/County Building, 8th floor, Pittsburgh.
Our State administration has filed an appeal to be heard in the PA Supreme Court.
Local Authority Western PA is among 20 Environmental and citizens groups who signed a “friend of the court “ brief
sponsored by Earth Justice. The list includes: Berks Gas Truth, Brockway Area Clean Water Alliance, Clean Air Council, Clean Water Action, Damascus Citizens for Sustainability, Earthworks, Environmental Defense Fund, Gas Drilling Awareness Coalition of Luzerne County PA, Group Against Smog and Pollution, Pennsylvania Division of the Izaak Walton League, League of Women Voters of Pennsylvania, Lehigh Valley Gas Truth, Local Authority Western PA, Marcellus Outreach Butler, Marcellus Protest, PennEnvironment, Responsible Drilling Alliance, Sierra Club, Thomas Merton Center, and Westmoreland Marcellus Citizen’s Group.
Many groups sponsored “friend of the court” briefs as well including:
The Natural Resources Defense Council, Pennsylvania Chapter of the American Planning Association, the Pennsylvania State Association of Boroughs, the Pennsylvania State Association of Township Supervisors, the Pittsburgh City Council, Mountain Watershed Association, and Earthjustice. All support the Commonwealth Court decision that found portions of Act 13 unconstitutional.
And these aren’t the only groups! Throughout the state legislators and townships have responded with “friends of the court” briefs prior to the Supreme Court hearing oral arguments Oct. 17 about the state's appeal of the Commonwealth's decision.
In their brief, the Natural Resources Defense Council is representing the townships of Wilkins (Allegheny County), East Finley (Washington County) and Tinicum (Bucks County); the municipalities of Murrysville (Westmoreland County) and Monroeville (Allegheny County); the Borough of Bell Acres (Allegheny County); and the City of Bethlehem (Northampton and Lehigh Counties).
“The Pennsylvania Chapter of the American Planning Association is concerned about the precedent that Act 13 would set for future zoning activities by limiting local municipal control. We believe thatmunicipalities are best suited to handle local land use planning by utilizing comprehensive plans and zoning ordinances without State preemption," said Kyle Guie, state APA Legislative Committee chair. "In order to preserve a high quality of life for all Pennsylvania residents, it is critical that municipalities maintain their ability to plan land use in accordance with a municipality’s individual needs and constraints."
The Pennsylvania State Association of Township Supervisors, representing 1,455 townships in the commonwealth, also filed a brief in support of the Commonwealth Court’s decision declaring portions of Act 13 as unconstitutional.
Also filing in support is the Pennsylvania State Association of Boroughs.
Also added have been a cluster of communities—including Cecil and Peters townships—as well as a medical doctor and non-profit group.
September 12, 2012- Update
A number of townships and environmental groups have entered “friend of the court” (amicus curiae) briefs in support of the townships contesting the provision of ACT 13 that strips the ability of townships to zone. On September 11, the Monroeville Council adopted and signed a joint “friendly” brief proffered by the Natural Resources Defense Council. On September 13, the Murrysville Council will review and consider this as well.
August 5, 2012 - Update:
We, citizens groups and community leaders, were instrumental in the recent first win of this law suit. If granted by the court there will be an 'argument' held in October, in Pittsburgh. We don't know more than that right now, but will provide details as soon as available.
Please start rounding up your 'troops', we need a big show of support in October. Get the word out, help coordinate car pools in your town/neighborhood. We will post more info here. Please send your questions to firstname.lastname@example.org.
From John Smith, lead attorney on this law suit:
The state entities appealed to the Pa Supreme Court, which was expected. The state filed a motion for expedited consideration of the appeal which we will join, albeit, for different reasons.
As the rules allow and as a cautionary measure, we will also be filing a cross appeal probably next week regarding a few of the issues that did not go our way.
The court will decide in the next week or two whether it will grant an expedited review for October.
If the relief is granted, the argument will take place a little closer to home in Pittsburgh. The argument would be open to the Public.
All counsel believe that fracktivists' as well as our clients' collective determination were instrumental in our first win. Why risk a winning formula, let's all keep up our efforts!
FLASH! WE WON!!
JULY 26, 2012
BREAKING NEWS: PA Commonwealth Court rules zoning provisions of Act 13 UNCONSTITUTIONAL
“Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”
Those words ring very true today. In a 4-3 opinion, the PA Commonwealth Court sided with the people and local communities of Pennsylvania by striking down large portions of Act 13, a law passed in February which severely restricted the ability of local communities to deal with natural gas drilling in the Marcellus Shale.
FULL COURT TRANSCRIPT (66 PAGES)
Videographer: Jason Bell
NEW SHORT VIDEO: EXPLAINING WHERE WE ARE NOW
AND NO ONE EVER ASKED MUNICIPALITIES TO WEIGH AND ASSESS THE RISKS TO
CLEAN AIR, WATER, AND LAND USE IN THEIR COMMUNITIES!
THE PENNSYLVANIA STATE ASSOCIATION OF TOWNSHIP SUPERVISORS (PSATS)?
WHAT ABOUT PSATS? A GOOD ARTICLE BUT THE CONCLUSION IS WRONG. IF THERE IS A SPLIT DECISION THE DECISION THAT ACT 13 IS UNCONSTITUTIONAL STANDS!
Who supports the Lawsuit?
For Immediate Release
July 19, 2012
Contact: Tracy Carluccio, Deputy Director, Delaware Riverkeeper Network
(office): 215-369-1188 x104 (mobile): 215-692-2329
Pennsylvania Municipality Support for Legal Challenge to Act 13 Growing
Sixty Seven Municipalities Go on Record Opposing Municipal Preemption
Commonwealth of Pennsylvania – As the reality of Pennsylvania’s Act 13 sets in at the local level in Pennsylvania, there is a groundswell of disapproval. In customarily deliberate and carefully considered fashion, municipalities throughout the state are publicly adopting resolutions and sending letters in support of the legal challenge to Act 13, the municipal takeover law that was adopted by the Pennsylvania Legislature and enacted by Governor Corbett’s signature in February 2012. Act 13 removes municipal zoning of oil and gas operations, weakens environmental protections under the Pennsylvania Oil and Gas Act, limits physicians’ rights to disclose gas drilling and hydraulic fracturing (fracking) chemicals that their patients may be exposed to, and establishes an impact fee on natural gas.
To date, at least sixty seven local governing bodies are known to have either adopted a resolution or voted to send a letter in support of the lawsuit that aims to overturn the law based on its unconstitutionality. The opposition to Act 13 spreads out geographically and includes Marcellus shale regions as well as areas where no drilling is occurring. Since Act 13 guts municipal rights over all types of natural gas operations – such as drilled gas wells, frack pits, gas pipelines, and natural gas processing facilities -- the law has a long reach that pulls in every community, no matter where it is located. Gas wells, frack pits and other gas and oil-related industrial pollution sources are now pushed into residential districts and right up against day care centers, schools, and shopping districts and municipalities are not allowed to keep them away.
Resolutions/Letters of Support have been adopted by:
Allegheny County Council
Ben Avon Borough
Jefferson Hills Borough
Mount Lebanon Borough
City of Pittsburgh
South Fayette Township (Party to lawsuit)
West Deer Township
Allegheny County Council
South Heights Borough
Lower Alsace Township
Mount Penn Borough
City of Reading
West Reading Borough
Nockamixon Township (Party to lawsuit)
Yardley Borough (Party to lawsuit)
City of Coatesville
City of Connellsville
Fayette County Council
Lackawanna Association of Boroughs
Black Creek Township
Luzerne County Council
East Greenville Borough
Upper Moreland Township
City of Bethlehem
Cecil Township (Party to lawsuit)
East Finley Township
Mount Pleasant Township (Party to lawsuit)
Peters Township (Party to lawsuit)
Robinson Township (Party to lawsuit)
South Strabane Township
Upper Burrell Township
In addition, a member of the Westmoreland County Council and the West Jefferson School Director in Allegheny County submitted letters of support.
Seven municipalities and Delaware Riverkeeper Network filed a legal pleading in Commonwealth Court challenging Act 13. The municipalities are: Township of Robinson, Washington County; Township of Nockamixon, Bucks County; Township of South Fayette, Allegheny County; Peters Township, Washington County; Township of Cecil, Washington County; Mount Pleasant Township, Washington County; and the Borough of Yardley Bucks County.
Act 13 amends the Pennsylvania Oil and Gas Act, preempting municipal zoning of oil and gas development. It also establishes an impact fee on natural gas. The plaintiffs are challenging the new law on the grounds it violates the Pennsylvania and United States Constitutions and endangers public health, natural resources, communities and the environment. “The Petition for Review in the Nature of a Complaint for Declaratory Judgment and Injunctive Relief” was filed March 29 in Commonwealth Court in Harrisburg. To read the filing: http://www.scribd.com/doc/87252080/Act-13-Challenge
“Act 13 is an unpopular law, and that fact is becoming more known now that so many municipalities are joining in to support the legal challenge. Zoning is the backbone of municipal government and without it, municipalities are disenfranchised,” said Tracy Carluccio, Deputy Director, Delaware Riverkeeper Network. “These 67 governing bodies are saying loud and clear ‘Don’t take away our local rights to protect our residents’. We fully expect the wave of dissent to grow over the coming weeks as the case moves through the courts. Even the now-infamous ‘South Newark Basin’ in Bucks and Montgomery Counties is not exempt from Act 13, despite some politicians’ attempts to make it seem so,” said Carluccio.
Jordan Yeager Esq. of Curtin & Heefner, one of the attorneys for the plaintiffs, said, “Communities from all across Pennsylvania are joining together and speaking out. They are speaking out to protect their residents, their businesses, their water supplies, their public health, and their local democratic rights. Together, they are sending the message that Act 13 must not stand.”
“We have received many formal Resolutions of municipal support of our legal challenge to Act 13, and many more informal expressions of support,” said Deron Gabriel, South Fayette Twp. Board of Commissioners, Allegheny Co., PA. “In fact, every local elected official I have spoken with has been generally supportive of our position of keeping our local zoning powers in order to protect the health, safety, and welfare of our residents including the two largest governing bodies in Allegheny County - Allegheny County Council and Pittsburgh City Council. There just isn’t any support for Act 13 at the local and regional level,” concluded Gabriel.
The case was argued in Commonwealth Court on June 6 and the Court is expected to rule in the near future. In April, Senior Judge Keith Quigley issued a preliminary injunction against a portion of Act 13 in response to the plaintiffs’ request, ensuring that zoning ordinances dealing with oil and gas operations remain in effect and are not immediately pre-empted, providing an additional 120 days for municipalities to consider their existing ordinances.
For information on how local governing bodies can express support for the challenge to Act 13: http://www.delawareriverkeeper.org/act-now/urgent-details.aspx?Id=102
In the news:
Western Pennsylvania municipalities file suit against state over new gas laws
Pittsburgh Council has sent a Support Resolution to the Municipalities who have joined in the suit. Here’s what they had to say:
Councilwoman Natalia Rudiak: Act 13 is absurd. This bill was written in secret. It was passed practically in secret. There was no public scrutiny of the final language.
Pittsburgh City Council President Darlene Harris: It's misguided, and it's just plain wrong to take zoning and planning away from each individual municipality.
✸ Court Argument June 6: Read letter here.
Commonwealth Court of PA
PA Judicial Center, Courtroom 5001
601 Commonwealth Ave.
It will be heard in the Commonwealth Court of PA.
The public is welcome to attend.
We are asking the court to decide the whole case. We essentially tell the court there are no facts in dispute that need to go to trial. Make a decision: Is this constitutional or not?
On June 6 Argument will be before at least 11 judges all at once.
and the House Democratic Caucus has filed an Amicus Curiae – that’s “friends of the court” for everyone who didn’t take freshman Latin — brief in the lawsuit.
The brief mirrors the lawsuit’s argument: that the legislation’s restriction on local zoning and regulation of drilling is unconstitutional.
Read the House Dems’ brief: http://stateimpact.npr.org/pennsylvania/2012/05/15/house-democrats-file-brief-in-impact-fee-suit/#more-9914
WHAT DOES THE LAWSUIT LOOK LIKE?
EXHIBITS ARE INCREDIBLE! SEE THE EXHIBITS IN TWO PARTS HERE AND HERE.
RISK ASSESSMENTS ALONE ARE DAUNTING: TABLE OF CONTENTS AND RISK ASSESSMENTS.
and MEMBERS OF THE PENNSYLVANIA STATE ASSOCIATION OF TOWNSHIP SUPERVISORS passed 2 resolutions at their yearly convention despite the clear waffling of the leadership!
12-36 RESOLVED, That PSATS oppose any legislation that would remove, reduce, or inhibit local government authority or existing local subdivision, land use, and zoning controls.
12-37 RESOLVED, that PSATS oppose any legislation that would pre-empt the existing authority of townships to regulate land use through zoning and subdivision and land development ordinances, including any amendments to the Coal and Non-Coal Surface Mining and Conservation Act and Oil and Gas Act.
* APRIL 20, 2012 Judge keeps gas industry, Republicans out of Marcellus lawsuit
HARRISBURG -- A Commonwealth Court judge has denied a request by the gas-drilling industry and top Republican legislators to intervene in a lawsuit challenging the constitutionality of the state's new Marcellus Shale law.
Senior Judge Keith B. Quigley wrote in a decision today that the legislators do not have a "legally enforceable interest" in defending the intent behind their law. He wrote that the interests of the industry will be represented by the state as it defends the constitutionality of the law.
The judge turned down requests to participate in the case by Senate President Pro Tem Joe Scarnati and House Speaker Sam Smith, as well as those by a collection of industry trade associations and companies.
Officials from seven municipalities, along with a Monroeville doctor and members of the Delaware Riverkeepers Network, have filed a suit arguing the the law constrains their ability to protect residents by how they craft zoning rules. Last week, Judge Quigley granted a 120-stay to the portion of the law affecting local zoning rules.
The remainder of the law went into effect on Saturday.
Earlier this week, attorneys for the legislators and the industry groups argued in court that they should be able to participate in the case.
Read intervention court order here.
✸ APRIL 11, 2012 3:30 PM: INJUNCTION GRANTED!!
✸ April 11, 2012: Commonwealth Court hearing on Act 13 underway
Attorneys for the commonwealth and for the municipalities challenging the state's new Marcellus Shale law are in the Commonwealth Court hearing room, and proceedings are underway before Judge Keith Quigley.
Most of the courtroom seats are filled -- Scott Perry, who is DEP's top oil and gas official, is here, as is several top House and Senate Republican aides who were involved in negotiating the final drilling legislation and some gas industry lobbyists.
UPDATE, 10:30 a.m. -- After a half-hour of remarks from lawyers, including the those representing several industry operators, and some back-and-forth with the judge, both sides are meeting with Quigley in his chambers.
For a recap of what's at stake today, here's an overview from this morning's newspaper.
Municipal officials, along with a Monroeville doctor and a prominent environmental activist, are arguing that the new law, which goes into full effect on Saturday, limits their ability to craft local zoning ordinances that adequately protect their residents. Their brief can be found below.
The standardized rules for towns would allow shale gas drilling activity and compressor stations in some currently prohibited areas, which the officials allege will infringe on the rights of residents and discourage new development.
They've requested a temporary injunction to halt the law from going into effect -- which they say is necessary to prevent a period of uncertainty as to local rules during the 120-day period they have to rewrite ordinances that are out of compliance with the new law.
In addition to the injunction, they also would like the case to proceed to a trial, where they could argue why they believe the law is unconstitutional.
A brief filed by the commonwealth on Tuesday (a copy is embedded below) argues in response that the municipalities in the suit have not shown how they would be harmed if the law goes into effect. It describes their legal claims as "nothing more than a broad criticism of the [law's] scope and effectiveness," rather than examples of unconstitutional actions.
Meanwhile, the Marcellus Shale Coalition and several operators have requested to intervene, and a hearing on that request is scheduled for Tuesday.
David Overstreet, an attorney from K&L Gates representing the industry groups, was allowed to address the court this morning. He argued that the current case is based on hypothetical scenarios as to the law's effects, and that actual incidents of harm due to the new law instead should be brought before the court.
Commonwealth's response at Post Gazette.
✸ April 4, 2012: Court orders quick hearing on state oil and gas law challenge April 11
A Harrisburg court will be holding a hearing Wednesday, week because Commonwealth Court today allowed for an expedited hearing on their lawsuit.
The communities and other plaintiffs are trying to stop the law from going into effect before April 15. Beating that deadline is critical to any effort to stop the law's implementation and to get breathing room for municipal governments that are trying to regulate the location and setup of well sites, several lawyers said today.
The court assigned the hearing for 10 a.m. Wednesday, April 11. It also dismissed a request from an for immediate ruling, saying the expedited preliminary hearing was enough for now.
✸ April 6, 2012 A coalition of oil and gas industries are charging that Act 13 would negatively impact the industry!
The purpose of laws is not to protect or support just one industry, but to protect all industry and the people of the commonwealth. Act 13 goes too far in protecting one industry at the expense of others.
The Pennsylvania Oil and Gas Association, the Marcellus Shale Coalition and several companies filed a legal petition Thursday morning, seeking to intervene in the lawsuit filed by municipalities and the Delaware Riverkeepers Network last week.
DOWNLOAD AND READ: Response to Intervening Suit
The 117-page suit was filed with the Commonwealth Court in Harrisburg. It names as defendants Department of Environmental Protection secretary Michael Krancer, attorney general Linda Kelly, and Robert Powelson, who chairs the Public Utility Commission.
Canonsburg attorney John Smith, who is representing Cecil and Robinson in the suit, said the group is seeking a injunction from the court to stop the statute from going into effect on April 14.
If that does not occur, they will be asking for an expedited hearing to give clarity to the municipalities that will need to undo their ordinances.
So what does the lawsuit say?
- The municipalities — mostly growing suburbs — want to retain their rights to say where drilling can happen in their towns and under what circumstances, powers affirmed by the courts before state lawmakers voted in February to restrict those powers.
- State lawmakers do not have the right to supersede the state's Municipal Planning Code, the state constitution's tool for authorizing local property rules, they claim in the suit. Several legal experts have been skeptical of that claim and the chance the suit has at overturning the new laws.
- Act 13's broad brush approach and failure to account for the health, safety, and welfare of citizens, the value of properties, adequate open spaces, traffic, congestion, the preservation of the character of residential neighborhoods and beneficial and compatible land uses, results in an improper use of the Commonwealth's police power and is therefore unconstitutional," the lawsuit states.
By crafting a single set of statewide zoning rules applicable to oil and gas drilling throughout the Commonwealth, the Pennsylvania General Assembly provided much sought-after predictability for the oil and gas development industry at the expense of the citizens of Pennsylvania.
IMMEDIATE ACTION REQUIRED - SUPPORT LAWSUIT WITH RESOLUTION
• PLEASE READ: Sierra Club’s Top Ten Myths about the new law,
• CONTACT YOUR MUNICIPAL LEADERS. ASK THEM TO SUPPORT THE TOWNSHIPS WHO ARE FILING THE SUIT BY ADOPTING A RESOLUTION or LETTER OF SUPPORT. YOU WILL FIND A SAMPLE RESOLUTION AND LETTER HERE.
THEN ASK THEM TO SEND THE RESOLUTION OF SUPPORT TO Brian Coppola, Robinson Township Supervisor, email@example.com
Let’s work together before we lose our right to plan for the future of our communities!
This is a very good piece by Vera Scroggins, citizen video journalist, talking with State policeman. Every citizen is concerned for safety.