This month’s column in the Legal Intelligencer / Pennsylvania Law Weekly addresses two unrelated events in the week of April 9 (which speaks volumes about publication lag):
- On April 11, in Robinson Township v. Commonwealth Public Utilities Comm’n, No. 284 MD 2012 (Pa. Commw. Ct.), a single judge of the Pennsylvania Commonwealth Court preliminarily enjoined the effectiveness of Section 3309 of the 2012 Amendments to the Pennsylvania Oil and Gas Act, commonly known as “Act 13.” Act 13, among other things, strengthened state preemption of local ordinances regulating oil and gas activities in Pennsylvania.
- The injunction will allow municipalities to enforce local ordinances that may not comply with Act 13, at least for a few more months.
- In a subsequent ruling, on April 20, the same judge denied leave to intervene to several oil and gas operators and two state legislators.
- On April 26, the PUC delayed issuance of its final order implementing Act 13 pending clarification of the injunction.
- On April 13, President Obama issued Executive Order 13605, titled “Supporting Safe and Responsible Development of Unconventional Domestic Natural Gas Resources.” Subsequently, on April 17, EPA issued final air pollution regulations for oil and gas production, but delayed the effective date of certain provisions for capturing emissions during completion of a hydraulically fractured well.
These events raise the question of who ought to be the primary regulator of new shale gas development. The case for multiple, overlapping regulators is weak. Which level of government ought to be the “decider?” Read Preemption and Natural Gas Development: Who is the Decider?, 35 Pa. L. Weekly 404 (May 1, 2012), here.