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August 19, 2013

Municipalities Oppose Pennsylvania's Request To Resubmit In PA Act 13 Appeal

Earlier this month, we reported that Pennsylvania’s Public Utility Commission (“PUC”) and Department of Environmental Protection filed an application to resubmit in the pending appeal concerning Act 13’s constitutionality so that a full panel of judges can decide the matter and avoid a split decision that many have speculated about and which would equate to an affirmance (http://bit.ly/1cKc3cP).  In response, the group of municipalities challenging Act 13's statewide zoning rules for hydraulic fracturing filed their opposition with Pennsylvania's high court.  Their opposition papers asserted three grounds as to why the court should reject the state's application:
1.   "The PUC-DEP's request for reargument is premature as any application for reargument must be filed following the entry of a judgment pursuant to Pa. R.A.P. 2542, and was filed in contravention of existing rules and internal operating procedures." 2.   "The PUC-DEP have failed to provide any sound basis for resubmission of the case and so proceeding with resubmission and/or reargument would result in a waste of judicial resources." 3.   "The PUC-DEP's request for resubmission and reargument would result in the appearance of impropriety such that public confidence in the independence of the judicial branch of government may be compromised."
In response, the State requested leave to reply, in which it responded to what it characterized as all of the municipalities' five meritless accusations. Stay tuned for further developments in this case of importance to shale development in Pennsylvania.

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