Friday, January 3, 2014

Legal scholar: "inconceivable" that new Corbett legal tactic will succeed in fracking battle

Posted By on Fri, Jan 3, 2014 at 1:39 PM

The argument over Act 13 -- the Pennsylvania fracking law so dramatically overturned by the state Supreme Court last month -- is far from over. Not only did the Supreme Court send some key questions back down to a lower court for further review, but the state has asked the Supremes to take a second look at their own ruling.

Late yesterday afternoon, with little fanfare, attorneys for Gov. Tom Corbett filed a request for reconsideration -- a plea for the judges to think again. But environmentalists who won the case call the effort a desperation move ... and at least one Pittsburgh legal scholar agrees.

The state's filling raises two main concerns. One is a highly technical argument about the "severability" of certain environmental provisions: As discussed here yesterday, concerns have been raised about whether the court may have tossed out some Act 13 measures that provide additional environmental protections.

But more broadly, the state argues that Chief Justice Ronald Castille's opinion relies on claims about fracking's environmental impacts that have not been proven ... and that the state says are false.

The claims in question appear in the ruling's most sweeping section, where Castille's sometimes-soaring rhetoric inspired environmentalists while galling industry's supporters. They include, for example, Castille's claim that "By any reasonable account, the exploitation of [natural gas] will produce a detrimental effect on the environment, on the people, their children, and future generations ... perhaps rivaling the environmental effects of coal extraction."

The state argues that fracking's actual environmental impact got little if any discussion in the case, which focused more on legal questions than environmental ones. If given the chance, the state argues, it "would present ... serious scientific and scholarly testimony and documents that would refute [Castille's] unsubstantiated and factually incorrect conclusions."

In a statement, Corbett general counsel James D. Schultz said "[T]oday's request for reconsideration seeks to give Act 13 its fair day in court." Castille's opinion, he added, "made its own sweeping factual findings ... none of which finds any support in the sparse and uneven factual record" in the case.

Jonathan Kamin, one of the attorneys won the case, counters that if the factual record was uneven, the state only has itself to blame. "Everyone agreed to an expedited trial and argument schedule, and they are the ones who requested that" Kamin says. His clients, he adds, did include affidavits documenting concerns about fracking's environmental impact -- all to help prove that Act 13's industry-friendly approach to fracking violated the state's Environmental Rights Amendment. (The amendment, passed in 1971 asserts that Pennsylvanians "have a right to clean air, pure water, and ... the natural, scenic, historic, and esthetic values of the environment.") But the state's legal strategy largely bypassed that evidence, Kamin says, focusing on legal issues like court precedents limiting the Amendment's applicability.

In the end, Castille accepted the environmentalists' more expansive interpretation of the amendment, to the surprise of many -- Corbett's lawyers perhaps most of all. But "it's funny that now they're saying there wasn't a chance at a full discussion," Kamin says. "It's like the classic situation where the children who kill their parents cry about being orphans. "

In any case, Kamin adds, "This is a 160-page decision, well-reasoned and thoughtful, and it took the court over a year to produce." Given all that, "it's not appropriate to say [the court] didn't know what it was doing."

And Duquesne University law professor Bruce Ledewitz, at least, says "it's inconceivable that the court is going to revisit" its opinion now.

Ledewitz has written an op-ed trumpeting the ruling, but he understands the state's objections. "I loved this decision in every way," he says, "but Chief Justice Castille gave us a whole history of coal development in the state -- it's not possible for that have been to decided earlier in this case. Everybody was completely blown away by that."

But Ledewitz says that Kamin's response -- that the state had its chance to argue the facts -- is "absolutely unassailable. The plaintiffs are going to say, 'We always said the Environmental Protection Amendment meant more than it has meant [in earlier cases], and that's why we brought forward the arguments we did. You relied on [prior caselaw], and that's why you didn't think any of this was relevant.'" And having chosen a losing legal strategy, Ledewitz says, the state can't get a do-over.

Even if the state did present evidence to counter the claims made by the plaintiffs, Ledewitz suspects, the result wouldn't be any different. "The chief justice clearly knows the state's position. This court knew there was a controversy about how much harm fracking does -- we all know that. And the court has taken a position that the plaintiffs are right."

It's not that the court never reverses itself. Ledewitz cites the United Artists case, in which the court ruled that historic-preservation laws were unconstitutional in 1991 ... and then reversed itself two years later. Ledewitz says the earlier ruling prompted preservationists to "come out and say 'You can't mean that.' And the court reversed itself." But in dealing a mortal blow to Act 13, he says, "It's very clear that the court did mean that."

So if a motion for reconsideration is such a longshot, why bother to try it? Ledewitz suspects two reasons. First, he thinks the state may have real concerns about the severability question. And second, he says, Castille's ruling essentially argues that the state has jeopardized the environment in the name of "jobs." And especially in an election year, Ledewitz says, "The administration simply can't agree with that position.

"This is about the politics of fracking -- and I don't mean that in an underhanded way," Ledewitz adds. "This is a representation of the governor's honestly held position, and to make a policy statement like this is perfectly honorable."

But it's not one, he adds, that is likely to impress the state's highest court.


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