Politics & Government

Attorney in Act 13 Challenge: Re-Argument of Case Could Open 'Pandora's Box'

'Granting the PUC-DEP's current request could create the appearance that a named party used the nomination to secure a desired vote on a pending case,' John Smith, lead attorney arguing the Act 13 challenge wrote.

The attorney leading the challenge against the state's new law governing Marcellus Shale drilling activities has filed objections to a recent filing by two state agencies asking that the state Supreme Court rehear argument in the case.

The request was made last week by the state Department of Environmental Protection and the Public Utility Commission so that the seventh justice—a Republican appointed by Gov. Tom Corbett—could also hear the case.

But attorney John Smith, who represents Cecil Township, Peters Township and the other entities challenging Act 13, raised three objections in a recent court filing.

He argued that not only was the request premature based on court procedure, but that a re-argument could open "Pandora's Box."

"The request that this court arbitrarily select one case to be resubmitted opens up a 'Pandora's Box' for all matters pending before the court to be reargued despite no new facts or law being presented before a decision is rendered," Smith wrote in court documents.

He also wrote that a re-argument of the case would "result in the appearance of impropriety such that public confidence in the independence of the judicial branch of government may be compromised."

Smith wrote: "Importantly, the newest addition to the court by the governor and the state Senate, both entities who had interest in Act 13 remaining intact. Granting the PUC-DEP's current request could create the appearance that a named party used the nomination to secure a desired vote on a pending case."

He argued that the DEP and PUC appear to have filed the appeal based on speculation that there might be a 3-3 tie in the case.

"Assumedly, (the agencies) are now seeking an additional vote that they appear to believe may alter this potential 3-3 outcome," the court document indicated.

If a 3-3 decision is reached, it would affirm a Commonwealth Court decision that portions of Act 13 regarding the pre-emption of local zoning ordinances is unconstitutional.

Further, he argued that re-hearing the Act 13 case would amount to "cherry-picking."




Get more local news delivered straight to your inbox. Sign up for free Patch newsletters and alerts.

We’ve removed the ability to reply as we work to make improvements. Learn more here

More from Canon-Mcmillan