Pennsylvania Seeks Quick Review of Shale Gas-Related Court Decision

A critical battle in the fight over hydraulic fracturing in Pennsylvania continues, and will now speed up, as both parties in Robinson Township v. Commonwealth have requested expedited review of the Commonwealth Court’s opinion.  Robinson Township struck down a state law that limited localities’ ability to regulate oil drilling.  The law in question, Act 13, was enacted in response to various municipalities’ attempts to thwart hydraulic fracturing through the use of zoning ordinances.  Act 13 was an attempt to restore regulatory certainty to the energy exploration industry by providing a comprehensive and uniform scheme for oil and gas exploration.  The municipalities asserted that the zoning ordinances were their prerogative due to their constitutional duty to protect the health and safety of their residents–never mind that much of the science surrounding fracking has debunked the claims underlying the hysteria.

Pennsylvania contains portions of the Marcellus Shale–which is poised to become the most productive natural gas field in the US–and other unconventional formations.  Prior to the enactment of Act 13, the Pennsylvania Supreme Court had indicated that it was up to the legislature to clearly communicate its intent to restrict the municipalities’ land-use authority over areas where energy development was occurring.  The legislature responded by enacting Act 13, which expressly preempts municipal zoning schemes that restrict oil and gas operations.  Upon challenge, the court used a substantive due process inquiry to determine that the legislature’s Act was unconstitutional under the Pennsylvania constitution.

Given the amount at stake in terms of job creation, energy supply and domestic energy prices, along with the fear mongering over unconventional oil exploration that environmental activists have promulgated, it’s no wonder both sides have moved to accelerate the appeal.

As the Commonwealth’s brief states,  “Until certainty, one way or the other, is established, the Commonwealth risks losing the chance to promote and grow a key economic driver to its fullest potential, perhaps irreparably so.”

Update: Another “Natural” Food Class Action Advances in California

In last week’s Another Unappetizing Class Action Ruling from The Food Court post, we failed to mention an additional class action where our favorite all-natural consumer, Skye Astiana, is also one of the named plaintiffs seeking redress for alleged misleading food labeling. Ms. Astiana is one of the “et al.s” in Bates et al. v. Kashi Company, filed in the U.S. District Court for the Southern District of California.

The suit alleges that Kashi’s act of printing “all natural” or “nothing artificial” on its packages violates federal and California laws (including, of course, § 17200). Such products, the plaintiffs argue, contain “between one and seven unnatural, synthetic, or processed ingredients.”

On July 16, Judge Marilyn Huff dismissed several of the federal law claims and common law claims, but denied dismissal on the California consumer protection law claims. She declined to find that federal nutrition labeling law preempted the state claims. She reasoned that the Food & Drug Administration’s policy statement on what “natural” means was merely advisory, and thus could not serve as a sufficiently firm policy statement for federal preemption grounds. As in the Astiana v. Dreyer’s Grand Ice Cream decision discussed in our August 9 post, Judge Huff agreed with the plaintiffs that more factual development was needed on the “consumer expectation” aspect of § 17200, and thus it was premature to dispense with that claim.

Time for Supreme Court Review of Corporate “Status Crime” Legal Doctrine

Cross-posted by at WLF contributor site

Two weeks ago in Friedman v. Sebelius, a divided U.S. Court of Appeals for the District of Columbia Circuit largely upheld what amounts to the lifetime exclusion of three senior pharmaceutical executives from any further involvement in the industry.  Their offense:  pleding guilty to misdemeanor charges that they were executives of Purdue Frederick Co., at a time when (unbeknownst to them) some company employees engaged in the improper promotion of Purdue Frederick drugs.

Criminal prosecution of corporate executives not shown to have a guilty state of mind (or even to have acted negligently) has long been controversial.  Such prosecutions—under what is known as the “Responsible Corporate Officer” (RCO) doctrine—have twice survived constitutional challenges in the Supreme Court by razor-thin 5-4 margins in 1943 and 1975.  The Supreme Court reasoned that the RCO doctrine allows society to make a strong statement regarding its disapproval of corporate misbehavior without unduly punishing largely blameless senior executives, because penalties in RCO cases “commonly are relatively small, and conviction does no grave danger to the person’s reputation.”  Morisette v. United States.  There is serious reason to question whether the lifetime exclusion largely upheld by the D.C. Circuit fits the Supreme Court’s definition of a “relatively small” penalty.  In light of federal officials’ determination to bring more such prosecutions, the Supreme Court ought to revisit the RCO doctrine and decide whether it is being applied in a manner that comports with due process of law. Continue reading “Time for Supreme Court Review of Corporate “Status Crime” Legal Doctrine”