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Robinson Township v. Commonwealth, Pennsylvania Public Utility Commission

Commonwealth Court of Pennsylvania

July 17, 2014

Robinson Township, Washington County, Pennsylvania, Brian Coppola, Individually and in his Official Capacity as Supervisor of Robinson Township, Township of Nockamixon, Bucks County, Pennsylvania, Township of South Fayette, Allegheny County, Pennsylvania, Peters Township, Washington County, Pennsylvania, David M. Ball, Individually and in his Official Capacity as Councilman of Peters Township, Township of Cecil, Washington County, Pennsylvania, Mount Pleasant Township, Washington County, Pennsylvania, Borough of Yardley, Bucks County, Pennsylvania, Delaware Riverkeeper Network, Maya Van Rossum, the Delaware Riverkeeper, Mehernosh Khan, M.D., Petitioners
v.
Commonwealth of Pennsylvania, Pennsylvania Public Utility Commission, Robert F. Powelson, in his Official Capacity as Chairman of the Public Utility Commission, Office of the Attorney General of Pennsylvania, Linda L. Kelly, in her Official Capacity as Attorney General of the Commonwealth of Pennsylvania, Pennsylvania Department of Environmental Protection and Michael L. Krancer, in his Official Capacity as Secretary of the Department of Environmental Protection, Respondents

Argued May 14, 2014.

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Court of ORIGINAL JURISDICTION.

Jonathan M. Kamin, Pittsburgh, John M. Smith, Canonsburg, and Jordan B. Yeager, Doylestown, for petitioners.

David R. Overstreet, Pittsburgh, for amici curiae Penneco Oil Company, Inc., Chesapeake Appalachia, LLC, MarkWest Liberty Midstream & Resources, LLC, The Pennsylvania Independent Oil and Gas Association, The Marcellus Shale Coalition, and American Petroleum Institute.

Jarad W. Handelman, First Executive Deputy General Counsel, Dennis A. Whitaker, Chief Counsel, Harrisburg, for respondents the Pennsylvania Department of Environmental Protection and Secretary E. Christopher Abruzzo.

Matthew H. Haverstick, Philadelphia, for respondents the Pennsylvania Public Utility Commission and Chairman Robert F. Powelson.

Howard G. Hopkirk, Senior Deputy Attorney General, for respondents Commonwealth of Pennsylvania, Office of Attorney General and Linda L. Kelly.

BEFORE: HONORABLE DAN PELLEGRINI, President Judge. HONORABLE BONNIE BRIGANCE LEADBETTER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge. OPINION BY PRESIDENT JUDGE PELLEGRINI. Judge Leavitt did not participate in the decision in this case. DISSENTING OPINION BY JUDGE BROBSON. CONCURRING/DISSENTING OPINION BY JUDGE McCULLOUGH.

OPINION

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DAN PELLEGRINI, President Judge

This matter is presently before us on remand from a Supreme Court " mandate" directing us to consider the constitutionality of certain provisions of Act 13[1] to address several claims that we did not address because we incorrectly found that the person(s) asserting the right did not have standing or that the claim could not be brought in a petition for review in our original jurisdiction. See Robinson Township v. Commonwealth, 83 A.3d 901, 999-1000 (Pa. 2013) ( Robinson Township II ).[2] While the Supreme Court affirmed our holding that 58 Pa. C.S. § § 3215(b)(4)

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and 3304 were unconstitutional (on different grounds), remand was necessary because the Court reversed our dismissal of claims brought under Article 1, Section 27 of the Pennsylvania Constitution[3] by finding that 58 Pa. C.S. § § 3215(d) and 3303[4] were also unconstitutional under that provision and enjoined their enforcement. As a result, our Supreme Court further directed us to address whether any of the relevant provisions of Act 13 are severable.

To comply with the Supreme Court " mandate," the parties have agreed that only the following issues ...


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