00:00 - Welcome to the may

00:01 - twenty twenty three

00:02 - supreme court

00:03 - argument list.

00:05 - I'm Sharon Lopez

00:06 - and I'm a plaintiff's

00:07 - employment civil rights lawyer

00:09 - with try catch a law in

00:10 - Lancaster Pennsylvania.

00:12 - I am joined today

00:13 - by Brooks Poland.

00:15 - Books his extensive

00:16 - experience as a

00:17 - trial attorney at

00:17 - Marshall dennehy.

00:19 - However he is mo

00:20 - most proud of his ability

00:21 - to help litigants

00:22 - solve matters using

00:24 - mediation and alternative

00:25 - dispute resolution as

00:27 - an arbitrator.

00:28 - Brooks has a personal and

00:29 - professional commitment

00:31 - to the value of

00:31 - eighty are mediation.

00:33 - His perspective is retuned

00:34 - by his service to the community

00:36 - which there is a lot.

00:38 - He understands

00:39 - the needs of others

00:40 - and works to improve their

00:41 - situations by volunteering for

00:43 - meals on wheels.

00:44 - Offering pro bono

00:45 - representation to veterans

00:47 - appealing disability

00:48 - just determinations

00:50 - and improving the lives

00:51 - of Guatemalan orphans.

00:53 - Today

00:54 - he brings his

00:55 - extensive legal skills

00:57 - and insights

00:58 - to the Pennsylvania

00:59 - supreme court

01:00 - and will help US understand

01:01 - the question support

01:03 - has about these cases

01:04 - that we're hearing today.

01:06 - Please number one on

01:07 - today's list is caption bears.

01:09 - Vs stroud township.

01:12 - And the appeal is by

01:14 - stroud township.

01:16 - This appeals about

01:17 - the constitutionality.

01:19 - Of a township ordinance.

01:21 - Which places restrictions

01:23 - on the discharge of firearms

01:25 - within the township.

01:28 - The appellant.

01:30 - Jonathan bearers.

01:32 - Owns a four point

01:33 - six six acre tract.

01:35 - Of land in stroud township

01:37 - Monroe county.

01:38 - In two thousand and eleven the

01:40 - township enacted an ordinance.

01:42 - Regulating the discharge

01:44 - of firearms within the township.

01:46 - Citing to it's dense population

01:48 - and desire to

01:49 - protect.

01:50 - Pp public health

01:51 - and safety.

01:53 - The fact the ordinance made it

01:54 - unlawful to

01:55 - discharge any firearm

01:56 - within the township.

01:58 - Unless certain

01:59 - exceptions applied.

02:01 - For instance

02:03 - you could not discharge your

02:04 - gun.

02:05 - Before dawn.

02:06 - Or after dusk.

02:08 - You could not

02:09 - discharge it within

02:10 - one hundred and fifty

02:11 - yards of an adjacent.

02:12 - Occupied structure

02:14 - can perform.

02:17 - And.

02:18 - You could.

02:19 - Use the gun when hunting.

02:21 - Of course guns can be used

02:23 - for law enforcement purposes.

02:25 - As permitted by

02:26 - state and federal laws.

02:28 - Defense of oneself or another.

02:31 - And guns can be used

02:32 - indoor and outdoor.

02:34 - Shooting ranges

02:35 - if operated in a safe

02:36 - and prudent manner.

02:38 - Subject to standards and

02:39 - regulations in the industry

02:41 - and under the supervision of the

02:42 - owner occupant of the property.

02:44 - Or his or her duly

02:45 - appointed representative.

02:47 - And a permit is

02:48 - issued by the township.

02:50 - Zoning officer.

02:51 - And there are other

02:52 - miscellaneous of exceptions

02:54 - to the firearms ban in

02:55 - the township as well.

02:57 - Mr bears.

02:59 - Applied for a permit

03:01 - to operate a shooting range

03:02 - on his property.

03:04 - The permit was denied

03:06 - by the township.

03:07 - For for stated reasons.

03:09 - First because the

03:10 - property was one.

03:11 - Residential are

03:13 - and not open space

03:14 - and preservation.

03:15 - Were special and recreational.

03:18 - Number two because the property.

03:20 - Was not the minimum

03:21 - five acres as required

03:23 - in the zoning ordinance.

03:25 - Number three

03:25 - because the proposed

03:26 - shooting range did not meet.

03:28 - The one hundred and fifty

03:30 - foot setback requirement.

03:31 - From an occupied

03:32 - dwelling structure.

03:34 - And forth.

03:35 - Because mr bears

03:36 - his application.

03:37 - Did not include

03:38 - standards and regulations

03:40 - specific to the firearms

03:42 - to be discharged

03:43 - at his

03:44 - shooting range.

03:45 - Mr bears filed a lawsuit

03:46 - against the township.

03:48 - In the court of common

03:49 - pleas of monterey county.

03:50 - Contending that the

03:51 - fire your arms ordinance

03:52 - is unconstitutional

03:54 - and deprived him

03:55 - of his right to use

03:57 - his own property.

03:58 - The trial court

03:59 - dismissed the lawsuit

04:00 - holding that neither the

04:02 - US nor pa constitutions

04:04 - granting individual

04:05 - the right to discharge

04:06 - a firearm whenever

04:07 - he or she pleases.

04:09 - Mister barris filed an

04:10 - amended complaint

04:11 - in the trial court.

04:13 - Which was also later dismissed.

04:15 - By the court.

04:16 - Mr barris filed an appeal

04:18 - to the Pennsylvania

04:19 - commonwealth court.

04:21 - Again contending that

04:21 - the firearms ordinance.

04:23 - Is unconstitutional.

04:26 - The township oppose the appeal.

04:28 - The Pennsylvania

04:29 - commonwealth court

04:30 - analyzed the

04:30 - ordinance in the context

04:32 - of the second amendment

04:33 - right to bear arms.

04:36 - The court ruled that

04:37 - because the ordnance.

04:38 - Barred outdoor target practice

04:40 - unless the property

04:41 - was located within

04:42 - two specific zoning districts.

04:45 - Mr barris was prevented

04:46 - from maintaining

04:47 - proficiency in the use

04:49 - of his firearm.

04:51 - The court that applied

04:52 - the intermediate

04:53 - scrutiny standard

04:54 - to the ordinance and concluded.

04:56 - That the orders

04:56 - was unconstitutional.

04:58 - Because the burdens and

04:59 - limitations of the ordinance

05:01 - were greater than

05:02 - what is necessary

05:03 - to keep the public.

05:04 - Safe.

05:06 - The commonwealth court

05:07 - found that the ordinance

05:08 - did violate mister bears his

05:10 - second amendment rights

05:11 - and reversed the

05:12 - decision of the trackwork.

05:15 - The township has filed an

05:16 - appeal to the pa supreme court.

05:18 - And you're about to hear

05:19 - arguments in that appeal.

05:21 - On appeal the township.

05:23 - Citing two.

05:24 - Recent US supreme

05:25 - court precedent.

05:26 - Will likely attempt

05:27 - to argue to the court

05:29 - that the second amendment

05:30 - is not implicated here.

05:32 - Because this case involves

05:33 - mister bears his right

05:35 - to discharge his firearm.

05:37 - Not as right to own

05:38 - bear or carry.

05:40 - His firearm.

05:42 - The plain text of the

05:43 - second amendment.

05:44 - The township

05:45 - will argue

05:46 - speaks to the latter

05:48 - and not to the form.

05:50 - The township may argue

05:51 - further that there is not

05:52 - is no constitutional right

05:54 - to practice shooting the firearm

05:56 - or an operating

05:57 - an outdoor range.

06:00 - Pennsylvania Attorney General

06:02 - Josh shapiro has filed a brief

06:04 - as amicus curiae.

06:06 - In support of the township's

06:07 - position.

06:09 - Attorney General superheroes

06:10 - sites to the most recent

06:12 - US supreme court case.

06:14 - In argues that the commerce

06:15 - court failed to examine

06:17 - whether the plain text of

06:18 - the second amendment.

06:19 - Provides a right

06:20 - to target practice.

06:21 - On one's own property.

06:24 - Under this new

06:25 - precedent the township and

06:27 - Attorney General superior.

06:29 - Will also likely be

06:30 - arguing that the courts

06:31 - no longer

06:32 - need to determine

06:33 - whether a gun law

06:34 - is narrowly tear owed.

06:36 - Tailored

06:37 - or least burdensome

06:38 - in order to be

06:39 - found constitutional.

06:41 - Of course mister barris.

06:43 - Will likely argue the

06:44 - commonwealth court was correct

06:46 - in applying the

06:47 - second amendment.

06:48 - In the traditional

06:49 - two pronged test

06:50 - to invalidate

06:52 - the firearms ordinance.

06:54 - This should be a very

06:55 - interesting

06:56 - argument potentially.

06:57 - Impacting all pennsylvanians.

07:00 - Now let's

07:01 - get to the courtroom

07:02 - and listened to the arguments.

07:05 - The honorable the

07:06 - chief justice and justices

07:07 - of the supreme

07:08 - court of Pennsylvania.

07:12 - Oh yea oh yea oh yea

07:15 - all manner of persons

07:16 - who stand bound by

07:17 - recognizance who

07:17 - otherwise have business

07:19 - before this court may now

07:20 - appear and they shall be heard.

07:21 - God save become a law

07:23 - and this honorable court

07:24 - please be seated.

07:25 - Hey.

07:29 - Everyone

07:30 - welcome to our second

07:31 - day of oral argument here.

07:33 - In the Harris hurt

07:35 - courtroom of our.

07:36 - Supreme court of Pennsylvania at

07:38 - our majestic state

07:40 - capitol building.

07:42 - As architect alford Houston.

07:45 - Envision this this building

07:46 - to be a powerful art

07:48 - I highly encourage

07:49 - everyone in attendance.

07:51 - To visit our bartender.

07:54 - Legislative chambers

07:55 - and governor's reception room.

07:58 - With an eye toward the

07:59 - beautifully created artwork

08:01 - particularly.

08:02 - The famous.

08:04 - Violent oakley murals installed.

08:07 - In

08:07 - nineteen twenty seven

08:09 - and you can see those gorgeous

08:11 - murals all around

08:12 - this courtroom.

08:14 - Oakley was the

08:16 - first female artist to

08:17 - ever receive a major

08:19 - public art commission

08:21 - and her murals on

08:22 - the evolution of law.

08:24 - Are simply spectacular.

08:27 - We also marvel

08:28 - at the fifty two million

08:31 - pound terra cotta

08:33 - don't.

08:34 - Above the rotunda.

08:36 - At one third scale model

08:38 - of the dome.

08:39 - Of st Peter's basilica

08:41 - in Rome.

08:43 - On top of which

08:44 - a fifteen foot.

08:46 - Gilded statue named

08:48 - commonwealth.

08:49 - Stands.

08:50 - Houston intentionally

08:52 - placed this courtroom.

08:54 - On fourth floor

08:55 - with the legislative and

08:57 - executive chambers on the second

08:59 - to physically separate

09:01 - and symbolically indicate

09:04 - that the judiciary

09:05 - is an equal and separate

09:07 - branch of government.

09:09 - The courtroom

09:10 - was designed in the.

09:12 - Greco Roman

09:12 - style as indicated by

09:14 - by ionic columns and the Greek.

09:17 - Grill

09:18 - wainscotting

09:19 - are handcrafted.

09:21 - All of the wood in

09:23 - this room including the

09:24 - bench is mahogany

09:26 - imported from Belize.

09:28 - I'd also like to

09:29 - draw your attention

09:30 - to the two ton

09:31 - bronze chandelier is.

09:34 - Unique.

09:35 - Yet different from one another.

09:37 - Under the main light in

09:39 - each is a statute designated.

09:41 - Are dedicated to for

09:43 - great

09:44 - lawmakers

09:45 - to my right are the Hebrew

09:47 - law givers closest to the bench

09:50 - is Moses and in the

09:51 - back king Solomon

09:53 - to my laughter the Greeks

09:55 - closest to the benches Aristotle

09:57 - and in the back is sullen

09:59 - the father of democracy.

10:01 - The green and gold

10:02 - stained glass dome above US

10:05 - was designed.

10:06 - By Alfred

10:07 - godwin

10:08 - and is one of the many

10:10 - domes in the capital

10:12 - but this is the only one.

10:14 - That is stayed.

10:15 - Ass

10:16 - and.

10:17 - It is only visible from

10:18 - inside the courtroom.

10:22 - Sen George wharton pepper

10:24 - remarked in nineteen

10:25 - twenty seven.

10:27 - That oakley's murals

10:29 - would remind the justices

10:31 - of their solemn duty

10:33 - and the advocates

10:35 - to restrain their passions

10:37 - and compel candor.

10:39 - And that these paintings

10:40 - would serve as a silent

10:42 - but convincing witness

10:44 - to those things

10:46 - without which we build in vain.

10:50 - Council

10:51 - before we

10:52 - hear the first case.

10:53 - I'd like to remind

10:54 - you of a few things.

10:56 - Appellant's counsel

10:57 - please approach

10:58 - the podium when

10:59 - your case is called

11:01 - I will then give a very

11:02 - short summary of the case.

11:04 - You may then begin

11:05 - by stating your name

11:07 - and the party represent

11:08 - and please introduce

11:09 - your co-counsel to

11:10 - the court.

11:12 - The justices are familiar

11:13 - with your cases so.

11:15 - I ask that you avoid

11:17 - any unnecessary

11:18 - recitation of facts

11:19 - or procedural history

11:21 - and then instead

11:22 - focus on the main

11:23 - issues upon which

11:25 - we granted review.

11:26 - Council is welcome

11:28 - to rely on their briefs

11:30 - for particular issues

11:31 - if they so desire.

11:33 - In cases in which

11:34 - there are multiple

11:36 - parties represented

11:37 - by separate counsel.

11:39 - You should avoid repeating the

11:40 - same arguments as prior council.

11:43 - Please try not to

11:44 - interrupt the justices

11:45 - when they are

11:46 - asking you questions a

11:48 - justices question is

11:49 - not meant to trip you up

11:51 - but rather it indicates

11:52 - there are particular

11:54 - issues we wish

11:55 - to explore further.

11:57 - While we have no set time limit

11:59 - for argument in this court.

12:01 - I will advise vice counsel

12:03 - when the court has

12:04 - heard enough and is satisfied

12:06 - that all questions

12:07 - have been answered

12:09 - and at that time I will ask that

12:10 - you conclude your argument.

12:12 - Mister miner please

12:13 - call the first case.

12:15 - Embarrassed versus

12:16 - stroud township

12:18 - represent.

12:19 - Township mr Neil Albert.

12:21 - Will presenting amicus the

12:22 - office of Attorney General.

12:24 - Mr Jay about the loan

12:25 - representing mister

12:27 - barris mr Paul Kramer Jr.

12:30 - The question in this

12:32 - appeal is whether

12:33 - a township ordinance is facially

12:35 - unconstitutional

12:37 - under the second amendment to

12:39 - the United States constitution.

12:42 - The challenged ordinance

12:43 - limits with certain exceptions

12:46 - the discharging of a

12:47 - firearm to shooting ranges

12:49 - which are restricted to two non

12:52 - residential zoning districts.

12:54 - Further the ordinances

12:56 - the ordinance requires

12:59 - that a shooting range

13:02 - is compliant with nr

13:02 - a safety stay Sanders.

13:02 - Is on a five acre

13:04 - minimum lot size

13:05 - and has a one hundred and

13:07 - fifty yard minimum setback

13:09 - from adjacent

13:10 - occupied structures

13:12 - if that is roughly

13:13 - correct please proceed.

13:16 - Police court.

13:17 - Counsel.

13:19 - First of all would

13:19 - like to second the

13:20 - remarks of the chief

13:21 - justice that is a great

13:22 - privilege

13:23 - to engage in the practice of law

13:25 - in a setting like this.

13:27 - My name is Neil

13:28 - Albert i'm special

13:29 - counsel for stroud township

13:31 - with me an oral

13:32 - argument is Bart alone

13:34 - the chief deputy attorney

13:36 - gen oral for the commonwealth.

13:38 - We will divide oral

13:39 - argument as follows.

13:41 - The commonwealth will argue all

13:43 - issues related

13:44 - to the bruun case.

13:46 - The township

13:47 - has some brief

13:48 - remarks relating to

13:50 - non ruined reasons for reversal.

13:54 - I would note that these are

13:55 - those issues we're not briefed

13:57 - because of the court ruling to

14:00 - address ruin.

14:01 - However they were

14:02 - preserved for review.

14:04 - In the petition for allowance

14:06 - of appeal of the township.

14:08 - Arguments b and c

14:10 - and I would note

14:11 - that this court had

14:13 - already granted the

14:14 - township's petition for

14:15 - review

14:16 - before ruin was ever decided.

14:20 - With that as an introduction.

14:22 - When the

14:22 - commonwealth court heard

14:24 - this case in twenty twenty one.

14:26 - The leading

14:28 - and most recent

14:29 - second amendment

14:30 - case of importance

14:32 - was a twenty eighteen

14:33 - third circuit decision

14:35 - new Jersey rifle and pistol

14:37 - vs the state of new Jersey.

14:39 - That was a case involving

14:41 - the constitutionality

14:43 - of a ten round magazine

14:45 - limitations statewide.

14:48 - The third circuit found that

14:50 - there was no core second

14:51 - amendment right involved.

14:53 - Applied an intermediate

14:54 - scrutiny test.

14:56 - And determined that the.

14:59 - The the the regulation.

15:01 - Did not unduly burden

15:02 - second amendment

15:04 - that it.

15:05 - Was a.

15:06 - Reasonable.

15:08 - It was a reasonable fit

15:10 - and

15:11 - the

15:12 - regulation did not have to

15:13 - be the least restrictive way

15:15 - of achieving the state result.

15:18 - Now that

15:18 - this case was.

15:20 - This case was a

15:21 - lengthy opinion and was

15:22 - thoroughly addressed

15:23 - in the commonwealth

15:24 - court though with.

15:26 - Commonwealth

15:26 - court said it adopted

15:27 - the reasoning

15:28 - of the third circuit

15:30 - but reached the opposite result

15:32 - and further it reached

15:33 - the opposite result

15:34 - a state of facts

15:35 - where the government

15:36 - interest was far stronger.

15:38 - New Jersey rifle

15:39 - and pistol was a

15:41 - case turning on

15:42 - the characteristics

15:44 - of a firearm the

15:45 - magazine capacity.

15:47 - Belarus is a discharge case.

15:50 - Whether a firearm

15:52 - holds one rounds or ten rounds

15:54 - doesn't matter

15:55 - unless it goes off.

15:57 - The minute a firearm

15:58 - goes off whether it has one

16:00 - ten round magazines.

16:02 - It's too late

16:03 - the harm has already occurred.

16:05 - And the.

16:07 - We felt that.

16:09 - The commonwealth

16:10 - court would recognize

16:11 - the heightened

16:12 - governmental interest.

16:13 - In regulating the place

16:15 - where discharge occurs.

16:17 - Compared to the right

16:18 - that was held sufficient

16:20 - in the new Jersey case.

16:23 - I.

16:27 - There are two ordinances in play

16:29 - as the court has already noted.

16:32 - Ordinance number

16:33 - nine of twenty eleven

16:34 - which I will refer to as

16:36 - the safety ordinance.

16:38 - With

16:38 - two relevant sections.

16:40 - Or section three

16:42 - that has a general ban

16:43 - throughout the township

16:45 - on the discharge of firearms

16:46 - and section four

16:48 - which allows discharge

16:49 - under special circumstances.

16:52 - Including allowing

16:53 - shooting on ranges in

16:54 - the the rural districts

16:55 - of the township

16:57 - but prohibits

16:58 - throughout the township

16:59 - any shooting at night.

17:01 - And any shooting

17:02 - within one hundred and

17:03 - fifty yards of an

17:04 - occupied structure you're

17:05 - in the township.

17:07 - That one hundred

17:07 - and fifty yard restriction

17:09 - is referred to in the

17:10 - commonwealth court

17:11 - opinion as a

17:12 - proximity limitation

17:13 - just just so the court is aware.

17:15 - I'm going to very

17:16 - slightly paraphrase a

17:18 - short quote from the

17:19 - commonwealth court

17:20 - opinion which

17:21 - is the heart of

17:22 - the problem here.

17:24 - Although the order

17:25 - once did not apply time

17:27 - and proximity

17:28 - limitations throughout the

17:30 - township.

17:31 - It's conceivable that such time

17:33 - proximity

17:34 - and property size limitations

17:37 - could pass

17:37 - constitutional muster.

17:39 - These limitations

17:41 - do not apply to

17:42 - mr barras whose

17:43 - conduct or property.

17:45 - As the dissent

17:46 - by senior judge

17:47 - ledbetter correctly noted.

17:49 - That's exactly what

17:50 - section four does provide.

17:54 - The failure of the commonwealth

17:56 - court to understand

17:57 - section four.

17:58 - Led to the commonwealth

17:59 - court conclusion

18:00 - that the entire ordinance

18:02 - was based upon

18:03 - zoning issues

18:04 - and the case was decided

18:06 - on the zoning exceptions

18:08 - rather than on the

18:09 - safety ordinance itself.

18:13 - The commonwealth court

18:14 - actually almost got it right

18:17 - it did recognize that

18:18 - there was a special.

18:20 - Government interest.

18:22 - Regulating safety of

18:23 - a discharge of firearms

18:25 - and the court

18:26 - actually noted that.

18:28 - There are different safety

18:30 - regulations

18:31 - for firearms

18:33 - then would be in

18:34 - the case for safety

18:35 - regulations about swimming pools

18:37 - workers.

18:37 - Wasn't the

18:39 - sorry to interrupt you.

18:40 - Sure

18:40 - that

18:41 - wasn't the point of the

18:42 - commonwealth court

18:43 - that

18:44 - I.

18:46 - The way your.

18:48 - Zoning and safety

18:49 - audience were structured.

18:51 - It wouldn't

18:52 - have mattered in this case

18:54 - because you could

18:55 - have a resident

18:56 - with a.

18:59 - Hundred acre

19:00 - parcel of property.

19:02 - That was

19:03 - surrounded.

19:05 - By.

19:06 - Mountain ranges to ward

19:08 - off the the back of the zone.

19:11 - But if it wasn't in the

19:13 - two specific districts.

19:15 - Where your safety

19:16 - regulations apply the ls.

19:19 - In the other

19:20 - if it was in a residential

19:21 - district for example

19:22 - there's no way that the.

19:25 - Owner of the property could

19:26 - put up a private gun range.

19:28 - Well and that the problem

19:30 - that the commonwealth

19:32 - court was articulating

19:32 - in that passage.

19:33 - At times it the

19:34 - commonwealth court appears

19:36 - to go that way and

19:37 - at times it seemed to

19:38 - focus on the zoning

19:39 - I have studied

19:40 - the opinion many times and.

19:42 - It's an opinion you can pull

19:43 - from various places various

19:45 - decisions out of.

19:47 - The commonwealth

19:48 - court did seem to be

19:49 - aware at times your

19:50 - honor of exactly that

19:51 - and at times not.

19:53 - Isn't that

19:53 - the the truth of

19:54 - the the matter that

19:56 - if you had a private

19:57 - residence who.

19:59 - One the appropriate

20:00 - amount of land

20:01 - to an appropriate setback zones

20:04 - unless their

20:05 - property was located

20:06 - in the two specific

20:07 - zones that you.

20:09 - Set forth for gun ranges

20:10 - regardless of the physical

20:13 - requirements of the.

20:14 - Zoning statutes they

20:15 - would be unable to

20:17 - have a private rate

20:18 - that is correct or yes.

20:19 - That is not nope

20:20 - no question that is

20:21 - correct that's what

20:22 - section three says and

20:23 - section four

20:24 - implies and if you're

20:25 - not with an exception yes.

20:27 - Okay.

20:30 - The commonwealth

20:30 - court actually almost got

20:32 - it right it said that

20:33 - the these shooting

20:34 - ranges have seven

20:35 - separate safety

20:36 - requirements from

20:37 - swimming pools and

20:38 - presumably that's a

20:39 - gesture at the off-site impact.

20:42 - On

20:42 - the court recognized

20:43 - the constitutionality

20:45 - of government could

20:46 - deregulate shooting

20:47 - ranges as far as

20:48 - minimum law size.

20:50 - Setback requirements.

20:51 - Could

20:52 - constitutionally

20:53 - require that a shooting

20:54 - range be designed and

20:56 - constructed according

20:57 - to nr a safety standards

20:59 - and the commonwealth

21:00 - court actually threw

21:01 - in one that wasn't

21:02 - even in the ordinance

21:03 - that it could require a yearly

21:05 - reinspection by law

21:06 - enforcement authorities

21:08 - or that that was something

21:09 - we did didn't even hand.

21:10 - And as already noted

21:12 - although the commonwealth

21:13 - court was mistaken

21:14 - about the application

21:15 - of the separation

21:16 - distance the barras property.

21:19 - Acknowledge that

21:20 - separation distances

21:21 - might be constitutionally

21:22 - permissible.

21:24 - Now the one hundred and

21:26 - fifty yard separation distance

21:27 - from an occupied structure

21:29 - was not arrived at.

21:32 - Independently by the

21:34 - supervisors

21:35 - this tracks the game code.

21:37 - Of the game code

21:37 - has a concept called

21:39 - safety zones which

21:40 - regulate a number of safe

21:41 - hunting practices.

21:43 - And.

21:52 - Yes.

21:53 - And.

21:58 - Because because of the

21:59 - safety zone your honor.

22:04 - Yes.

22:06 - And

22:11 - yes.

22:12 - I.

22:15 - Left yes your honor

22:16 - I agree with that yes.

22:23 - Yes.

22:27 - That is correct.

22:28 - I.

22:33 - Huh

22:40 - well it wouldn't have

22:42 - mattered because

22:43 - the township

22:43 - supervisors in their

22:45 - legislative discretion

22:46 - made a determination that

22:48 - in a township this populated.

22:50 - It was.

22:51 - It was.

22:52 - A township why the

22:53 - ban on discharging

22:54 - firearms was reasonably

22:56 - necessary to protect

22:57 - the citizens of the

22:58 - township.

23:00 - And that's I think

23:01 - the the facially

23:03 - constitutional challenge

23:04 - that mr virus has in

23:06 - this case.

23:08 - Your honor I.

23:09 - I hadn't wished that the.

23:12 - Opinion had wrestled

23:13 - with that because.

23:15 - There have been

23:16 - discharged cases and in city

23:19 - first class cities and

23:19 - second class cities.

23:20 - There has never been

23:21 - a squarely presented

23:22 - discharge case.

23:24 - At the appellate court level

23:26 - and this.

23:27 - This one

23:28 - was very unsatisfactory

23:29 - it did not grapple

23:30 - with that it sort of

23:31 - went off on the side

23:32 - issue of zoning

23:33 - whereas I would have welcomed

23:36 - a disk a square discussion

23:38 - of the discharge issue.

23:40 - We we didn't get it.

23:42 - But yeah you're

23:44 - the court the courts.

23:45 - Is absolutely right there's

23:46 - a township wide ban

23:48 - and it wouldn't have

23:49 - mattered as long

23:50 - as he wasn't in one

23:51 - of those two zones

23:52 - he doesn't get a shooting range.

23:56 - Anything further

23:56 - your honor are surely

23:57 - getting.

23:58 - Okay.

23:59 - Okay of.

24:00 - The one hundred and fifty yard

24:02 - separation distance

24:03 - is from the game code

24:04 - and which define

24:05 - safe hunting practices

24:07 - and I would add that

24:08 - the hundred and fifty

24:09 - yard separation

24:10 - distance where you know

24:11 - shooting is allowed

24:12 - by a hunter within

24:13 - one hundred and

24:14 - fifty yard odds of a

24:15 - occupied structure.

24:17 - Involves the context

24:18 - of.

24:19 - Simply the possibility

24:21 - that there might be a.

24:23 - A shot led off.

24:25 - By a licensed

24:26 - and trained hunter

24:28 - and only during.

24:30 - Hunting season.

24:31 - What in this case we have a

24:33 - shooting range

24:34 - which is balls of.

24:36 - Dusk dawn to dusk

24:37 - shooting could be continual

24:39 - and there are no restrictions

24:41 - at all at who can do it

24:42 - anyone with a deed.

24:44 - Or Elise.

24:45 - Or even permission.

24:47 - Can use this shooting

24:48 - range all day long.

24:53 - Now.

24:54 - I believe that the

24:55 - quantity of court analyzed

24:56 - the safety ordinance

24:58 - like an overbroad

24:59 - zoning regulation.

25:00 - Up the fact that

25:01 - the commercial that

25:03 - commercial car washes

25:04 - are limited to certain

25:05 - districts

25:06 - does not mean

25:07 - an individual can't

25:08 - wash his car in

25:09 - his own driveway.

25:12 - There was a dissent by

25:13 - senior judge lead belzer

25:14 - to the effect that

25:16 - which was a but a great

25:17 - judicial understatement that.

25:19 - There is a difference

25:20 - between maintaining

25:21 - a private shooting

25:22 - range and washing your

25:23 - car in your driveway.

25:25 - She called one

25:26 - hundred and fifty yard

25:27 - separation distance an

25:28 - obvious safety measure

25:30 - and so edit the five

25:31 - logic that it would

25:32 - not be applied

25:32 - throughout the township

25:34 - and the judge led belt

25:35 - or clip clearly understood

25:37 - what

25:38 - the justice Monday's point

25:40 - about the ordinance

25:42 - and was analyzing it and

25:45 - finding that it was a

25:45 - reasonable exercise

25:46 - and legislative discretion.

25:48 - In summary.

25:50 - The result reached by the

25:52 - commonwealth court

25:53 - was not necessary

25:54 - if the commonwealth court had

25:56 - construed this as

25:57 - a safety measure.

25:59 - Had

26:00 - given this ordinance

26:01 - the presumption of

26:02 - constitutionality

26:03 - that ordinances are

26:04 - entitled to.

26:06 - Had.

26:07 - Followed the logic

26:08 - of new Jersey rifle and

26:10 - pistol this needed

26:11 - to be considered only

26:12 - as a

26:14 - intermediate scrutiny test.

26:16 - The court would have followed.

26:18 - New Jersey rifle and pistol and.

26:21 - We would not be here at least we

26:23 - would not be here

26:24 - as the appellants.

26:25 - The effect of that decision.

26:27 - Was to give mr barris

26:30 - the right to a shooting

26:32 - range the conflicts

26:33 - were both section three.

26:33 - Of the safety ordinance

26:35 - which the township ban

26:36 - and section for

26:38 - the creates one hundred and

26:39 - fifty yard separation distance.

26:41 - Apart from any

26:42 - zoning considerations.

26:44 - Created right for a

26:45 - permanent shooting range

26:47 - in a spot where no

26:48 - one is allowed to hunt.

26:51 - Furthermore

26:52 - this property is

26:53 - surrounded on three sides

26:55 - by residences and

26:56 - there's a best buy four

26:57 - hundred feet away.

27:00 - And in the eight

27:01 - years I have had the

27:02 - privilege of representing

27:03 - stroud township in

27:04 - this matter

27:05 - there has never been

27:06 - any suggestion that

27:07 - mr barris intends

27:08 - to erect the reigns as

27:09 - compliant with nr a safe.

27:12 - Council

27:13 - yes.

27:14 - It appears that your

27:15 - entire argument is

27:16 - based upon the

27:16 - commonwealth court decision.

27:18 - That was written before

27:19 - scotus came down with bruun

27:21 - yeah how do you address it now

27:22 - are you reserving that for camp

27:24 - that has been reserved for

27:26 - counsel your honor that I I've

27:28 - reviewed all bruun.

27:29 - Arguments for counsel.

27:31 - My concluding

27:32 - remark actually just

27:33 - building on what you just said.

27:35 - As our brief indicates

27:37 - the top commonly

27:38 - township agrees with the call

27:40 - commonwealth's

27:41 - position in every respect

27:43 - and we expect this

27:44 - court is going to.

27:45 - Decide based on ruin but.

27:47 - This case requires reversal even

27:49 - if ruin had never been decided.

27:52 - Questions

27:53 - are council

27:54 - alright thank you

27:55 - thank you.

28:24 - Slot.

28:35 - Akira

28:36 - deny your face

28:37 - in this courtroom.

28:39 - Thank you your honor.

28:46 - Madam.

28:47 - Madam chief justice

28:48 - and may it please the

28:49 - court my name is

28:50 - parked alone and with the

28:51 - Pennsylvania attorney

28:52 - general's office.

28:53 - And I'm here on behalf

28:54 - of the commonwealth

28:55 - of Pennsylvania

28:55 - as amicus curiae I.

28:58 - As my friend from the township

28:59 - pointed out I'm here to address

29:01 - the.

29:02 - Ruin case.

29:03 - And specifically.

29:05 - What the test is

29:06 - under bruin and exactly

29:07 - what issue is being

29:09 - presented in this case.

29:11 - There's

29:11 - bruin presents a two part test.

29:14 - The first is whether or not.

29:16 - The.

29:17 - Conductivity issue.

29:20 - Fits within the

29:20 - scope of the plain

29:21 - text of the second amendment.

29:23 - And second is

29:25 - if it

29:25 - meets that.

29:27 - The government must demonstrate

29:28 - that the regulation

29:29 - is consistent.

29:30 - With.

29:31 - Historical traditions

29:33 - of gun regulations.

29:34 - And I think to.

29:36 - Address that standards

29:37 - the first thing you.

29:38 - Need to make sure

29:39 - you understand and is

29:40 - exactly what issue is

29:41 - being presented in this

29:42 - case.

29:43 - And this court

29:44 - identified the issue

29:45 - when it granted allocator.

29:47 - Which is whether or not

29:49 - the second amendment.

29:51 - Consistently provides for.

29:54 - Shooting ranges at

29:55 - all private residences.

29:57 - And

29:58 - we think the answer

29:59 - to that question is

30:00 - no.

30:01 - And we also

30:01 - think that it doesn't

30:03 - fit within the plain text of

30:04 - the second amendment.

30:06 - There is nothing about shooting

30:07 - ranges there's nothing about.

30:09 - The construction or operation

30:11 - or safety procedures under

30:12 - under.

30:13 - The second

30:14 - amendment and that's the

30:15 - first part of the test we think.

30:17 - The.

30:18 - The analysis can and should

30:20 - and there.

30:23 - Excuse me didn't the Heller case

30:25 - from the united

30:26 - states supreme court.

30:28 - Stand for the

30:29 - proposition that well regulated.

30:32 - Implies the imposition of proper

30:34 - training and proper

30:35 - discipline with.

30:39 - Gun laws.

30:40 - Yes you are

30:41 - I think training is is

30:42 - an element that it's

30:44 - within the second

30:44 - amendment and if this

30:46 - case were like the

30:47 - dsl cases for example

30:48 - where you were talking about

30:49 - a complete ban on training.

30:52 - That might implicate the the

30:53 - plain text of the

30:54 - second amendment

30:55 - but here we don't

30:56 - have that would you

30:57 - agree that if you're

30:58 - going to train with a

31:00 - firearm you would

31:01 - necessarily want to

31:02 - have a gun range to do it.

31:04 - I would agree that

31:05 - you should have an opportunity

31:07 - to go to a gun range.

31:08 - I don't think it's

31:09 - necessary that you.

31:10 - Have a gun range it at your own.

31:12 - Residence

31:13 - and in fact

31:14 - both

31:15 - these elk

31:16 - courts

31:17 - the southern circuit court as

31:18 - one and zero two.

31:19 - Recognized that.

31:22 - Municipalities have the right to

31:24 - time place and

31:25 - manner restrictions

31:26 - on where and when gun ranges.

31:27 - Can exist the

31:28 - problem in xcel was.

31:30 - In both

31:30 - I was actually was the

31:32 - one was an absolute

31:33 - ban and the other one.

31:34 - Is l two was a practical ban.

31:36 - Throughout the city of Chicago

31:38 - and here you don't have that

31:39 - when you have two districts.

31:41 - That allow gun use.

31:43 - But like I ask your.

31:45 - Co-counsel.

31:46 - You could be a property owner.

31:49 - That lived in in our

31:50 - district not included

31:52 - by the township's.

31:54 - Two districts

31:55 - you could have the

31:56 - required property

31:57 - size you could have

31:58 - the required setback

32:00 - requirements

32:01 - and you could meet every

32:02 - other standards set forth in the

32:04 - township safety and

32:06 - zoning ordinances

32:08 - and you could still be

32:10 - denied or you would

32:13 - still be denied the

32:13 - the ability to use your.

32:13 - Property to train

32:15 - with your firearm well.

32:19 - The the ordinances.

32:21 - Stem from.

32:23 - The idea of public

32:25 - safety and whatever the

32:27 - limitations are if you

32:28 - don't meet one of them

32:28 - and

32:29 - you're Europe you you would

32:30 - not be able to have a gun range

32:32 - was talking about not

32:34 - meeting the safety

32:34 - requirements i'm

32:35 - talking about not being

32:36 - able to fit into your zoning.

32:39 - Sky map because

32:40 - you're not in the two

32:42 - specific specific zones

32:43 - that would allow it well

32:45 - your honor

32:46 - mr virus yet but but

32:47 - but your honor the

32:48 - identification of

32:49 - two those two zones

32:51 - also have to do with

32:52 - population density.

32:53 - Which is in the record.

32:55 - Even in the commonwealth

32:56 - court's decision so

32:57 - that's all part of said safety

32:59 - and.

33:01 - Again we don't think

33:02 - having a shooting

33:03 - range at your

33:03 - individual residence.

33:05 - Is

33:05 - within the scope of the second

33:07 - amendment amendments plain text

33:09 - and that that should

33:09 - be the end of the

33:10 - analysis but even if

33:11 - it were not the end of

33:12 - the analysis.

33:13 - The second part of the test is

33:15 - whether or not it's

33:16 - historically consistent with.

33:18 - Traditional.

33:19 - Gun regulations

33:20 - and as we point

33:21 - out in our briefing.

33:23 - That has been true

33:24 - throughout the centuries.

33:27 - Both Heller and.

33:28 - Bruun make it.

33:29 - Very very clear.

33:31 - That they are not.

33:34 - Reorganizing the

33:35 - entire legal landscape.

33:37 - And that they were

33:38 - addressing very specific.

33:40 - Limitations that were.

33:43 - If not sui generis.

33:44 - Certainly outliers also.

33:47 - Following up on

33:48 - justice Monday in hell or

33:49 - the high court

33:50 - interpreted while regular.

33:52 - Well regulated

33:53 - militia to be training.

33:55 - Does that mean diocese conduct

33:57 - falls within the plain text

33:59 - of.

34:00 - The second amendment.

34:03 - Embarrasses conduct

34:03 - you mean having a

34:04 - shooting range at

34:05 - your home reading

34:06 - the purposes of

34:07 - discharging yeah.

34:08 - No.

34:09 - I don't think it does

34:10 - the question I also have

34:11 - following up on justice

34:12 - Monday's question.

34:14 - If I'm not mistaken in Heller

34:16 - they called the well regulate

34:17 - a well regulated

34:18 - militia a preparatory

34:20 - clause but the operative

34:21 - clause was the right

34:22 - to keep and bear arms

34:24 - scr how do we

34:24 - ignore that section

34:26 - or they're given.

34:27 - Are we giving priority

34:29 - to a well regulated militia.

34:32 - Despite.

34:33 - Heller's opinion

34:34 - though that that's

34:34 - only preparatory

34:35 - and we need to keep.

34:37 - The concept of the

34:38 - right to keep and bear

34:39 - arms know we we

34:40 - agree with the analysis of.

34:42 - Of how you break down

34:43 - the second amendment.

34:44 - Is preparatory.

34:45 - The right to keep and

34:47 - bear arms as I said

34:48 - to justice Monday.

34:50 - May have within it

34:51 - implicated the

34:52 - the the the right to

34:53 - have a certain amount

34:54 - of prefer agency

34:55 - but

34:55 - but

34:56 - if you.

34:57 - If you are able to go somewhere.

35:02 - Shooting.

35:03 - Then that proficiency is.

35:05 - Allowed

35:06 - and that's the big

35:07 - difference between dsl cases

35:09 - and a drummond and frankly.

35:11 - That's the big difference

35:12 - that the commonwealth

35:13 - court majority.

35:15 - Decision talked about which is

35:17 - they looked at it as

35:19 - to.

35:19 - You having a ban on this person

35:21 - having a gun

35:22 - range at their home.

35:24 - And.

35:25 - Your honor I don't

35:26 - see how you can read

35:27 - any part of the

35:28 - second amendment as

35:29 - allowing for.

35:31 - A constitutional

35:32 - right to a gun range at

35:33 - your own house for

35:34 - it prior to brewing I.

35:36 - Mean how do I phrase as

35:37 - they used to be the two step

35:39 - means and scrutiny approach

35:40 - right

35:41 - and then this whole concept of

35:43 - core rights and

35:44 - corollary rights.

35:46 - Is it your position or

35:48 - what's your position

35:49 - with regard to the fact

35:50 - that training should

35:51 - be it is considered

35:52 - a car or a car Cara Larry right.

35:54 - For which bruun knocked

35:56 - that test out so I guess.

35:58 - I had this

35:59 - if we assume it's

36:00 - a corollary rate

36:01 - because it

36:01 - still exists now

36:02 - that we have bruun.

36:05 - Yes sir I I think it

36:06 - does I think there is.

36:07 - A a training

36:08 - element but as again.

36:11 - As this court identified

36:12 - the issue itself

36:13 - that's not the

36:14 - issue in this case.

36:16 - The issue in this

36:16 - case is whether or not

36:17 - there's a constitutional

36:19 - right for every

36:19 - individual in Pennsylvania

36:21 - to have a gun

36:22 - range in their house.

36:23 - Or around their house house

36:25 - even though there's a best buy.

36:27 - And.

36:29 - Four hundred feet downrange

36:31 - even without getting into the

36:32 - specifics of the best

36:34 - buy and exactly what.

36:37 - This proposed gun range

36:39 - and

36:39 - is there anything.

36:41 - Looking at the plain text

36:42 - of the second amendment.

36:44 - That would

36:45 - prohibit municipalities

36:47 - from regulating.

36:48 - The location of shooting ranges

36:51 - or prohibiting target practice

36:53 - in residential areas no

36:55 - there is nothing in this

36:56 - matter of fact I think it's.

36:58 - Important to emphasize.

37:00 - That in a zone one.

37:02 - Sl to.

37:03 - The drum encased

37:04 - in the third circuit and

37:05 - even the commonwealth

37:06 - court decision below.

37:08 - That I page two twenty

37:09 - five they recognized.

37:11 - That

37:12 - municipalities.

37:14 - Have the right to.

37:16 - Regulate.

37:17 - Gun ranges.

37:18 - They all say that.

37:20 - What

37:21 - what the commonwealth court.

37:23 - Got wrong and it's

37:25 - it's understandable because the

37:26 - decision was made pre brewing.

37:28 - Because they went on

37:29 - to do a means and scrutiny test.

37:32 - Which I think just as Monday.

37:34 - Your questions related to that.

37:36 - And.

37:38 - That is no longer

37:39 - the applicable.

37:40 - Analytical framework.

37:42 - All you have to do do is decide

37:44 - whether or not the rest are.

37:46 - Or analogs

37:47 - for the kind of regulations

37:48 - that the township.

37:50 - Did here

37:51 - and we identified.

37:53 - All sorts of

37:54 - I won't go into

37:55 - detail here but we

37:57 - identified all sorts of.

37:58 - Such regulations going back to

38:00 - the seventeen

38:01 - seventeen fourteen.

38:02 - Or through the

38:03 - code only a period.

38:04 - Up through the.

38:06 - The post civil war period.

38:08 - Replete with

38:09 - examples of.

38:12 - Townships and cities.

38:14 - Saying.

38:15 - We can tell you when

38:16 - and where you can

38:17 - you can have a

38:18 - gun range we can't.

38:20 - Looking at the plain text

38:21 - of the second amendment

38:22 - right in the historical

38:24 - treatment because that's

38:25 - that's the tested bruun.

38:27 - If you if you stop at

38:29 - the plain text and it's

38:31 - not covered within

38:31 - the plain text and we.

38:32 - We do not think that having

38:33 - shooting range in

38:34 - your own residence

38:35 - is covered by a

38:36 - text then you're done.

38:38 - But if you assume that

38:39 - it is somehow covered.

38:41 - Then you look through

38:42 - the historical analogs

38:43 - and we identify.

38:46 - Case after case after case.

38:48 - Where.

38:49 - Municipalities did exactly what

38:51 - what

38:52 - the municipality did here.

38:53 - They looked to the

38:54 - population density

38:55 - and they tried

38:56 - to come up with

38:57 - certain regulations

38:58 - to.

39:00 - Maintain public safety.

39:05 - What what is the appropriate

39:07 - historical framework.

39:09 - Is it seventeen ninety one

39:11 - is a seventeen seventy

39:12 - six is it eighteen.

39:14 - Sixty eight is it

39:15 - twenty ten where

39:17 - are the second

39:17 - amendment bruins early.

39:19 - Activity.

39:20 - Bruun left that question.

39:22 - Somewhat open.

39:23 - And.

39:24 - The majority said we

39:26 - we could either look to

39:27 - seventeen ninety one.

39:29 - When the bill of

39:30 - rights four were.

39:32 - Ratified or we could look

39:33 - to eighteen sixty eight.

39:35 - When the fourteenth

39:36 - amendment was ratified.

39:38 - And.

39:38 - They left that question

39:40 - open because in bruun.

39:41 - The.

39:43 - Historical analogs were clear

39:45 - and I would

39:45 - suggest to this court

39:46 - that you can do the

39:47 - exact same thing.

39:48 - Because the

39:49 - historical analogues.

39:51 - Exist

39:52 - in the colonial period

39:53 - and also exist

39:54 - post civil war.

39:55 - The answer is the

39:56 - same either way.

39:58 - I would suggest that

39:59 - if the court wants to.

40:01 - To make a decision.

40:02 - That since this is

40:03 - a case involving.

40:05 - State law.

40:07 - That arises under the fourteenth

40:08 - amendment the

40:09 - more proper approach.

40:10 - Is eighteen sixty eight.

40:12 - Which obviously covers

40:13 - the colonial period

40:15 - but either one gets you the same

40:16 - answer why not two

40:17 - thousand and ten.

40:19 - Your honor I think the

40:20 - whole point of bruun

40:22 - and.

40:22 - Heller before that is

40:24 - that you are looking to.

40:28 - The way.

40:29 - The population understood these.

40:32 - Provisions when

40:33 - they were adopted.

40:34 - So I don't think

40:35 - even though for

40:37 - one hundred and sixty years.

40:38 - I

40:39 - no one actually

40:40 - looked at it that way.

40:42 - Yes your honor that's what the

40:43 - court said in court pointed out.

40:45 - For example in in cases like.

40:48 - New York vs Sullivan

40:49 - there was a lot of

40:50 - waiting around

40:50 - until they figured out

40:51 - the

40:52 - limits of liability

40:53 - but it's the court is

40:54 - very clear in either

40:55 - of those cases that.

40:57 - You have to make your analysis

40:59 - based on what.

41:00 - Either in and around.

41:03 - Seventy ninety one or.

41:05 - Or eighteen sixty eight

41:06 - and in our case

41:08 - your honor.

41:09 - The answer is the

41:09 - same either way.

41:11 - Is it safe to

41:12 - pick

41:13 - Ikea time at which

41:14 - the fourteenth

41:15 - amendment ways adopted or.

41:18 - Excuse me is it safe to pick I

41:21 - I

41:21 - eighteen so sky four

41:23 - eighteen sixty eight

41:24 - oh yeah

41:25 - of course is that

41:26 - the the bruun very

41:27 - specifically and

41:28 - very explicitly.

41:30 - Left the question open it

41:32 - actually kind of interesting.

41:33 - In the opinion itself

41:35 - even though they said we're

41:36 - leaving the question open

41:37 - and academics have deferred.

41:39 - The majority's cited

41:42 - two two academics that

41:44 - said the proper answer

41:44 - is eighty sixty eight.

41:45 - Commonwealth.

41:46 - Who bears the burden to prove.

41:50 - Plain text is it the government

41:52 - or is the challenger the statue

41:53 - no your honor up the

41:54 - plain text part of the.

41:56 - Test

41:57 - is is.

41:59 - The burden of the plaintive.

42:02 - The court in bruin made it very

42:03 - clear that there

42:04 - is a presumption.

42:06 - Of constitutionality.

42:08 - Once you're past

42:09 - the plain text test

42:11 - and it says.

42:13 - When.

42:14 - The plaintext test is is passed

42:16 - that is a

42:17 - bruun twenty one twenty six.

42:19 - They also refer to it again at

42:21 - bruins twenty one

42:22 - forty one note eleven.

42:23 - So it's very clear.

42:25 - That

42:26 - the

42:26 - plain text part of the

42:27 - test is plaintiff's burden.

42:29 - Obviously if you

42:30 - get past that it's the

42:31 - government's burden

42:32 - to say so that the

42:33 - regulation is consistent.

42:35 - With

42:36 - historical traditions.

42:38 - Is there is there any.

42:41 - Information in the

42:42 - lower court.

42:44 - With regard to the

42:45 - historical context.

42:50 - I I really don't think

42:53 - there is your honor

42:55 - and I again I I don't

42:55 - blame the lower court.

42:55 - They didn't have

42:56 - the guidance of bruun

42:57 - understate they they.

43:00 - I think.

43:01 - That

43:02 - in one sense they they

43:03 - they recognized that

43:04 - that what they were

43:05 - dealing with and the

43:06 - way they framed the issue was.

43:09 - Is there a ban on a

43:10 - particular individual having.

43:12 - An individual gun

43:13 - range in their house.

43:15 - Or around their house

43:17 - and I think they got that

43:18 - right but then they went on.

43:21 - To do a means and scrutiny test

43:23 - which

43:24 - is no longer applicable you say

43:26 - so

43:26 - in your view is

43:27 - it a if it would if it

43:28 - would be a finding

43:29 - of this court that.

43:31 - The.

43:33 - Opinion in Heller.

43:35 - Instructs US to.

43:37 - Find that the plain text covers.

43:40 - Use of.

43:42 - Fire

43:42 - arms.

43:44 - For.

43:45 - Training.

43:47 - And we have to go

43:48 - to the second prong

43:50 - to get to the

43:50 - historical context.

43:52 - Remand would be

43:53 - appropriate to the township.

43:55 - I didn't understand the

43:56 - last part of that question

43:58 - if we need to get to the second

44:00 - part.

44:01 - Of cron task washer

44:03 - in your opinion would

44:06 - it be appropriate to

44:06 - remand to the township.

44:07 - For.

44:09 - Further hearing on

44:10 - that matter to establish

44:11 - a record in that

44:12 - regard he certainly

44:13 - could remain

44:14 - your honor but.

44:15 - The court

44:16 - in bruun makes it

44:17 - very clear that this

44:18 - is a legal analysis

44:19 - that they're asking.

44:20 - The

44:21 - courts to do

44:22 - there it's in a

44:23 - historical framework

44:24 - but it's still a

44:25 - legal analysis and.

44:26 - Even though Heller

44:27 - and bruun talk in

44:28 - terms of nuances with

44:29 - respect to the whole

44:30 - historical analogue.

44:32 - With all due respect we don't

44:34 - think this case has much nuance.

44:36 - And

44:36 - we think the

44:37 - historical analogue is.

44:39 - As clear as it can be frankly

44:41 - and.

44:42 - You said they think

44:43 - that this case has

44:45 - much what nuance.

44:47 - I think it's

44:48 - it's pretty clear

44:49 - and.

44:50 - I think.

44:52 - Given the historical

44:53 - analogues and the guidance that

44:55 - the.

44:56 - United States supreme

44:57 - court has given.

44:58 - In bruun.

44:59 - This this.

45:01 - Can be resolved.

45:03 - By this court.

45:05 - Right now if the

45:06 - court feels it's

45:06 - necessary to remand

45:07 - obviously you have the

45:08 - authority to do so.

45:12 - If there are no other questions.

45:15 - Thank you.

45:21 - Thank you.

45:33 - Morning.

45:40 - Morning justices of the

45:41 - supreme court.

45:43 - On Paul Kramer for John burish

45:45 - from Monroe county.

45:48 - I.

45:49 - I was well into my

45:50 - brief and in this matter

45:51 - when in June of last year

45:53 - I got a letter from this court

45:55 - saying.

45:56 - Drop everything.

45:57 - And analyze drilling.

46:00 - It up.

46:01 - With due respect to

46:02 - the analysis provided by

46:04 - drought township's

46:05 - attorney today.

46:07 - I don't understand what

46:08 - that has to do with Berlin.

46:10 - For the second amendment.

46:14 - I do respect the

46:15 - commonwealth's position

46:17 - of the distinction about

46:18 - whether or not it's a court case

46:20 - clearly.

46:21 - To keep and bear

46:23 - arms keep Heller.

46:24 - Bear arms.

46:26 - Berlin and so forth.

46:28 - Each in the prefatory

46:30 - clause that a well

46:31 - regulated militia

46:32 - brings up the issue have

46:33 - the right to train

46:34 - show whether or not

46:35 - it's a core second

46:36 - amendment right has not

46:38 - been decided yet.

46:39 - The.

46:41 - Apparently the case in he shell

46:43 - believes definitely

46:44 - it is a core raid

46:45 - but.

46:46 - I don't think that's

46:47 - what we're here.

46:48 - If it is also a right to train.

46:50 - How do you

46:51 - expand that to the right

46:53 - to do that in your own

46:55 - backyard.

46:56 - I'm sure your honor

46:57 - if there if you do construe

46:59 - the second amendment

47:01 - as including the right to train

47:03 - yes how do you expand

47:05 - that to include the right to.

47:08 - Have a shooting range

47:09 - and train in your own yard.

47:11 - Well.

47:12 - That assumes

47:14 - that historical analysis.

47:17 - Controls.

47:21 - I'm not trying to

47:22 - expand it I am assuming

47:23 - for purposes of my

47:24 - argument that it is a

47:25 - core right.

47:27 - If you do

47:28 - assume that the training.

47:29 - Order to.

47:30 - Bear arms you

47:31 - have to be trained.

47:33 - To do so I understand

47:35 - your position.

47:37 - How do you translate

47:38 - that or expand that

47:40 - into where your

47:41 - train can't you go to.

47:43 - The shooting range ten

47:45 - miles away or five miles away.

47:47 - As opposed to having

47:48 - it in your own home.

47:51 - I would agree with that.

47:54 - That isn't the burden of proof.

47:56 - That that that.

47:57 - I haven't spent a whole

47:58 - lot of time on that issue

48:00 - and indeed.

48:02 - It's possible as

48:02 - I've told my client

48:04 - a dozen times

48:04 - it's quite possible.

48:06 - If you will return

48:07 - this ordinance

48:08 - another one can be drafted.

48:10 - Demonstrating

48:11 - that you can't shoot there.

48:14 - But it is stroud

48:15 - townships burden today to

48:17 - identify an American

48:18 - tradition justifying

48:20 - scout ordinance

48:21 - nine dash one one

48:22 - but

48:23 - have to use historical analysis.

48:25 - Style township

48:26 - and attorney general

48:27 - and I'm relying on your briefs.

48:29 - Haven't provided

48:30 - any historical analysis you've

48:32 - only provided regulations

48:34 - well let me let me ask you

48:35 - about that council because.

48:37 - One of the.

48:38 - One of the many.

48:40 - Historical.

48:42 - Precedents that we were given.

48:45 - And there are a number of them.

48:48 - Was a.

48:49 - a

48:50 - laugh from the colonial

48:51 - period here in Pennsylvania.

48:54 - And it was.

48:56 - Very colorfully.

48:57 - Entitled a.

48:59 - An act for the more effectual

49:01 - preventing accidents which may.

49:04 - Happen by fire and for

49:05 - suppressing idleness.

49:07 - Drunkenness and other debauchery

49:10 - and.

49:11 - It.

49:11 - Is banned apparently

49:13 - advance target practice within.

49:15 - Phil adelphia and

49:16 - surrounding towns.

49:19 - Prohibiting.

49:21 - Prohibiting anyone

49:23 - within any of these

49:24 - areas of the province

49:25 - from firing any gun.

49:27 - Or other firearm without the

49:29 - governor special license so

49:31 - there are a number of other.

49:32 - Presidents we've been offered.

49:35 - So.

49:36 - We've been given

49:37 - in light of the brewing.

49:39 - Precedent.

49:41 - A number of.

49:43 - Markers.

49:44 - Indicating does are

49:46 - suggesting to US at least that.

49:48 - There is a history and

49:50 - tradition in our nation of.

49:52 - Restrictions on.

49:54 - On shooting ranges on target

49:56 - practice and what have you so.

49:58 - What is it that you can tell

50:00 - US in the history and tradition.

50:03 - Of our country of ours

50:04 - or of our commonwealth

50:05 - that would suggest that.

50:07 - Your client.

50:08 - Has a right.

50:10 - To a shooting range.

50:11 - On his own property

50:12 - in other words.

50:14 - Why does the second

50:15 - amendment give him a

50:16 - right to step out of

50:17 - his back door and start

50:18 - shooting

50:19 - rather than step

50:20 - out of his back door

50:22 - and drive a few

50:22 - miles to arrange.

50:25 - I would use the argument that

50:27 - excel uses first of all that

50:29 - the

50:29 - the ability to train.

50:31 - It is needed

50:33 - to make.

50:34 - Conditions and

50:35 - circumstances safe.

50:37 - In that case.

50:38 - And again

50:39 - in my response to

50:40 - justice Todd chanter

50:42 - it could be.

50:44 - If this ordinance.

50:45 - Crafted properly.

50:47 - It would demonstrate danger

50:49 - and not allow my

50:50 - client to have a shooting

50:51 - range on his four and

50:52 - a half acre properly

50:54 - property I don't know whether

50:55 - that answers your

50:56 - question or not.

50:57 - And be

50:58 - perfectly frank with you

50:59 - I haven't really explored.

51:01 - That

51:02 - why does he have a right here.

51:04 - I'm treating

51:05 - bruins strip finally

51:06 - on historical analysis

51:08 - and

51:09 - what is historical analysis of

51:11 - Berlin doesn't beat

51:12 - around the bush or

51:13 - paragraph in Berlin

51:14 - it says specifically.

51:16 - It's founding year scholarship

51:18 - to it's nineteenth century

51:19 - case law and comment.

51:21 - Three it's congressional

51:23 - discussion.

51:24 - For each post civil

51:25 - war commentators

51:27 - and case law.

51:30 - Bruins not interested in various

51:32 - locales where

51:33 - they draw the line.

51:35 - Berlin wants the wisdom

51:36 - of how and why.

51:38 - Those light lines are drawn.

51:40 - Now the

51:41 - ordinance that justice.

51:44 - That you pointed out a

51:45 - moment ago has more.

51:47 - Explanation and

51:47 - rationale than most stores.

51:49 - Too.

51:51 - But it's not within the criteria

51:52 - it's still a regulation.

51:56 - The example is that bruun

51:58 - and Heller and

51:59 - Berlin use regarding

52:01 - historical analysis

52:02 - I've just picked a couple

52:04 - and eighteen

52:04 - forty nine treatise.

52:06 - A eighteen sixty eight

52:08 - scholarship promoting

52:09 - the fair use of

52:10 - weapons they're both

52:11 - from Heller.

52:13 - And eighteen eighty judicial sj

52:15 - discussion practice safe places

52:17 - again these are examples.

52:19 - Of what the supreme court

52:20 - considers historical analysis.

52:23 - Bruun uses a

52:24 - citation to the sixteen

52:25 - eighty nine

52:26 - English bill of rights.

52:28 - And there is an eighteen sixty

52:30 - eight reconstruction era report.

52:34 - Justice Thomas really

52:35 - says is it all for me.

52:38 - Quote.

52:38 - A handful of jurisdictions

52:40 - does not demonstrate

52:42 - demonstrate a tradition.

52:44 - Of prohibition I couldn't

52:45 - have said that better

52:47 - I think the supreme

52:48 - court recognizes.

52:50 - Yes you can show me

52:51 - ten thousand regulations

52:52 - were different

52:53 - jurisdictions have drawn

52:55 - lines.

52:56 - But there are probably

52:57 - ten thousand and one on

52:58 - that have the regulations.

53:00 - So they want to know

53:01 - again the wisdom

53:02 - and understanding behind that.

53:05 - If you would indulge me just

53:07 - fifteen seconds

53:07 - regarding the fact

53:08 - my client set up

53:09 - a shooting range.

53:11 - Neighbor called and

53:12 - he shoots for awhile

53:13 - neighbor calls

53:14 - police three times.

53:15 - Please come out.

53:17 - Different setup police.

53:19 - People trained

53:20 - for safety reasons

53:21 - and say it looks safe to me.

53:24 - And they tell that to the

53:25 - neighbor neighbor calls.

53:26 - The.

53:28 - Supervisor who based on

53:30 - absolutely nothing.

53:32 - But that telephone call

53:34 - drafts

53:34 - and passes through

53:35 - ordinance nine dash one one.

53:38 - This court recently

53:39 - in a roof over.

53:41 - Versus border review case.

53:43 - Say clue merely.

53:44 - A regulation

53:46 - must not be beyond.

53:47 - Now knesset

53:48 - necessity some sharia

53:49 - the case and must

53:50 - show a real and

53:51 - substantial relation to the

53:52 - problem.

53:53 - In other words.

53:54 - This strat ordinance.

53:56 - Didn't show which needed.

53:58 - It didn't show there were

53:59 - less restrictive measures.

54:01 - It didn't

54:02 - consider the

54:02 - impact on it's citizens

54:04 - it didn't consider the limits

54:06 - of police power

54:07 - that this.

54:08 - This court

54:08 - uses

54:09 - again as recently

54:10 - in the rough one

54:11 - versus board review

54:12 - case that I mentioned

54:13 - I don't think bruh

54:14 - intended to eliminate.

54:16 - One constitutional test

54:18 - and

54:18 - and.

54:19 - Replace it with another.

54:21 - I don't think britain.

54:22 - Expand

54:23 - the pie please power.

54:26 - Limitations.

54:28 - Counseling

54:29 - can I follow up with

54:30 - you on that I thought

54:31 - I thought bruun

54:32 - expressly did that

54:33 - I thought bruins said

54:34 - something to the fact that.

54:36 - The coupon pass that's being

54:38 - used is one step too many.

54:41 - The only the only

54:42 - step that counted.

54:43 - As.

54:44 - The historical analysis.

54:48 - The only step that counts

54:50 - is whether or not it's a

54:51 - right that's either a

54:53 - core or corollary reich

54:55 - like.

54:55 - Period after that you look at

54:57 - the history you don't do a means

54:59 - to an

54:59 - end the analysis

55:00 - I mean I thought

55:01 - x specifically what they had.

55:03 - One step too far.

55:05 - I think

55:05 - justice Thomas did not like

55:08 - I mean scrutiny test

55:09 - yeah but I mean I

55:10 - would have that extra step.

55:12 - I I mean.

55:13 - The the majority

55:14 - opinion starts out with

55:16 - the proposition

55:16 - that I guess stating.

55:18 - What's being used in the

55:20 - lower courts goes one step

55:22 - too far.

55:23 - And which means the means

55:25 - and analysis wise

55:26 - one step too far.

55:29 - But you're suggesting

55:30 - we should still do that.

55:34 - Yes

55:35 - in certain cases.

55:36 - For example

55:38 - if you determined that firearm

55:40 - discharge were not

55:41 - was not a core right.

55:43 - I think we could

55:44 - default for lack

55:45 - of a better word

55:46 - to the main scrutiny test.

55:49 - I dunno whether that

55:50 - answers your question or not

55:51 - cancel.

55:53 - The concept the broom

55:54 - was the state of new

55:55 - York required a personal

55:56 - chef special need

55:57 - for self protection you receive

55:58 - an unrestricted

55:59 - license to carry.

56:01 - So we're dealing with the

56:02 - actual possession of a firearm.

56:04 - The case before US is

56:05 - dealing with it's discharge.

56:07 - Your argument is that the the.

56:10 - Opposing counsel has not

56:12 - provided historical context.

56:14 - Yet the office of the general

56:16 - that the Attorney General

56:17 - and of a twenty

56:18 - page brief.

56:20 - Fifteen of those pages.

56:22 - Share with US the historical.

56:25 - Issue or laws.

56:27 - Regarding.

56:29 - Discharge that

56:30 - being target practice.

56:32 - Share with me

56:33 - how can you make your argument

56:35 - when.

56:35 - The concert bruins

56:37 - and all justice Thomas'

56:38 - concerns.

56:40 - With work

56:41 - was concerning

56:41 - the right to carry

56:43 - possess and bear on.

56:45 - This case

56:46 - is

56:46 - discharged.

56:48 - Share with US.

56:50 - How you make that.

56:52 - Not innocent.

56:56 - I think.

56:59 - Given the facts of this

57:00 - case the possibility remains.

57:03 - That.

57:04 - John burish

57:05 - up again have already set up

57:06 - before might not

57:07 - be able to use his

57:08 - his lot.

57:09 - As is the case.

57:11 - But.

57:12 - If you look at the

57:13 - analysis in excel

57:14 - or to Chicago there are

57:15 - shoveled versions of that case.

57:18 - It says.

57:21 - We have a

57:21 - circumstance there that

57:23 - he has nope no

57:24 - other place to go.

57:26 - Chicago just said

57:27 - no shooting ring and

57:29 - I.

57:30 - Respect them from

57:30 - asking the question

57:31 - with regard to the

57:32 - case before US today.

57:33 - You keep citing bruin you keep.

57:35 - Referring US to justice.

57:38 - Thomas's concerns.

57:40 - That you.

57:40 - Believe

57:41 - then.

57:41 - The question is that was

57:43 - to protect an

57:44 - individual's right to carry.

57:46 - Pennsylvania

57:47 - straub is not trying

57:48 - to preclude mr barrel

57:50 - from possessing.

57:51 - And owning a firearm.

57:53 - He's trying to

57:54 - the government is

57:55 - under police protection

57:57 - is trying to protect the public.

58:00 - Why

58:00 - are they not permitted

58:02 - to.

58:03 - Restrict or regulate the venue

58:04 - for a discharge of a firearm.

58:07 - Under his police

58:07 - now I understand

58:08 - just as dirty if for no other

58:10 - reason simply because.

58:12 - In order to do

58:14 - something like that.

58:16 - Scout township

58:17 - has to demonstrate.

58:18 - That.

58:19 - Through

58:20 - there is an historical

58:21 - tradition

58:23 - and I share with you I think

58:24 - fifteen pages of

58:25 - the various states.

58:27 - And municipalities as

58:28 - indicated by council's.

58:30 - Brief is sufficient enough.

58:34 - There are not regulations

58:37 - the fifteen pages

58:39 - if I remember correctly

58:40 - he's go much case law.

58:40 - And comment in there

58:41 - which I think qualifies.

58:44 - As.

58:44 - One of the four criteria

58:46 - first article analysis.

58:49 - But it is again we're talking.

58:51 - A specific place.

58:53 - In here.

58:54 - As far as your traditional.

58:57 - You might be asking me.

58:59 - What would I do to

59:00 - try to prove there is

59:01 - an historical tradition

59:03 - for John parishes

59:04 - circumstances

59:05 - and I can't answer that.

59:07 - At all.

59:08 - It could be safe.

59:10 - Three three such a police

59:11 - officers thought it was.

59:13 - It might not not be safe

59:15 - but we don't know

59:16 - the answer to the next

59:17 - one prior to the

59:17 - establishment of the

59:18 - ordinance correct sir.

59:20 - Correct.

59:21 - So

59:22 - the law changes

59:23 - yes.

59:24 - So considering

59:26 - the law changed.

59:27 - And now there's a

59:28 - restriction applied.

59:30 - Regulating the venue of

59:32 - charging the firearm

59:33 - share with me or US.

59:35 - How that is.

59:37 - An infringement

59:38 - upon your clients'

59:40 - right to possess the gun.

59:42 - Does not discharge it unless

59:43 - he goes to the appropriate zone.

59:45 - Understood.

59:46 - I agree with it.

59:48 - Thank you.

59:51 - I think the issue

59:52 - of limitations and.

59:55 - I think.

59:56 - The.

59:58 - 550 For police protection limits.

01:00 - 02.380 As in the roof a

01:00 - 03.670 case to this court.

01:00 - 05.240 Ruled upon.

01:00 - 06.970 Is a limitation.

01:00 - 09.490 Before consideration.

01:00 - 11.440 Of historical analysis.

01:00 - 14.200 Heller had limitations.

01:00 - 15.413 Yes you can have a

01:00 - 16.464 gun in your home but

01:00 - 17.370 you can't if you're

01:00 - 18.280 mentally unsound.

01:00 - 20.140 Or if you're a convicted felon.

01:00 - 23.365 Berlin has limitations

01:00 - 24.264 you can carry a

01:00 - 25.267 weapon but it can't

01:00 - 26.590 be a sawed off shotgun.

01:00 - 28.963 And it can't be in a

01:00 - 30.321 sensitive place and I

01:00 - 31.264 wish britain had

01:00 - 32.860 mentioned more about what

01:00 - 33.764 essentially replaces

01:00 - 34.630 but they haven't.

01:00 - 37.540 So I I think that limited if

01:00 - 38.721 this case were

01:00 - 40.360 before the bruun court.

01:00 - 41.793 I think they would

01:00 - 43.150 say we can't proceed

01:00 - 45.220 to historical analysis

01:00 - 46.510 because this case.

01:00 - 49.090 Isn't up to snuff regarding.

01:00 - 50.920 The police powers.

01:00 - 53.080 Granted to jurisdictions.

01:00 - 56.096 When I'm requesting

01:00 - 57.596 this court to do is.

01:00 - 59.423 Fine at the case

01:00 - 00.734 well first of all find

01:01 - 01.552 out there is no

01:01 - 02.756 historical analysis.

01:01 - 04.586 Only a batch

01:01 - 05.486 of.

01:01 - 07.226 Regulations that.

01:01 - 09.326 Justice Thomas doesn't.

01:01 - 10.866 Favor.

01:01 - 11.813 Alternately I ask

01:01 - 13.046 the court to find that

01:01 - 13.919 this case doesn't

01:01 - 15.206 warrant consider ration

01:01 - 16.466 have historical analysis

01:01 - 17.873 because it exceeds

01:01 - 19.526 the local police powers.

01:01 - 21.696 And.

01:01 - 23.952 I ask the court in

01:01 - 25.117 that regard to adopt

01:01 - 26.175 the reaching another

01:01 - 27.236 commonwealth court

01:01 - 28.976 decision as demonstrating.

01:01 - 30.686 An abuse of police power.

01:01 - 31.512 To.

01:01 - 32.456 Council

01:01 - 33.726 regular.

01:01 - 35.256 It.

01:01 - 36.714 Got gotten you agree

01:01 - 38.042 that the ordinances

01:01 - 39.306 and regulations that

01:01 - 40.826 have been presented to

01:01 - 41.996 US as the

01:01 - 43.886 history of regulation.

01:01 - 46.766 Deal with the intersection.

01:01 - 48.356 Of second amendment

01:01 - 49.826 rights and police power

01:01 - 51.669 isn't that precisely what those

01:01 - 53.456 ordinances and regulations do.

01:01 - 59.829 Yes I want to say

01:01 - 00.992 yes I mean they don't

01:02 - 01.799 treat the second

01:02 - 03.116 amendment or mention it.

01:02 - 04.883 By name are so buried and

01:02 - 05.636 guns

01:02 - 07.436 are so varied in scope.

01:02 - 09.059 That it would be

01:02 - 10.496 hard to say one is

01:02 - 11.743 the case that your

01:02 - 13.016 suggestion one is not.

01:02 - 14.796 Again.

01:02 - 16.761 I think that stroud

01:02 - 18.266 townships burden of proof.

01:02 - 20.606 I'm asking you I mean.

01:02 - 22.286 White ordinance.

01:02 - 23.486 Doesn't

01:02 - 25.457 represent some exercise

01:02 - 27.206 of the police power.

01:02 - 28.676 I mean.

01:02 - 30.006 What they do.

01:02 - 32.947 They these ordinances represent

01:02 - 35.666 an exercise of the police power.

01:02 - 37.086 Regarding

01:02 - 40.076 discharge of of a firearms.

01:02 - 43.346 Location of discharge of.

01:02 - 45.080 All in the context of

01:02 - 46.659 the exercise of police

01:02 - 47.842 power by the vocal

01:02 - 49.226 ray regulating body

01:02 - 49.826 sure.

01:02 - 51.494 Why isn't that an

01:02 - 53.156 appropriate historical

01:02 - 54.276 analogue.

01:02 - 55.926 It is.

01:02 - 56.666 Okay

01:02 - 58.452 if no then the fifteen

01:02 - 59.769 pages of examples

01:02 - 00.738 that we have a

01:03 - 02.126 is it appropriate.

01:03 - 03.759 Focus for US in

01:03 - 06.296 determining the ai historical.

01:03 - 08.629 Background depending on the sky

01:03 - 09.154 top of each

01:03 - 10.256 particular ordinance.

01:03 - 11.970 Again and I don't think

01:03 - 12.997 we have very much

01:03 - 13.968 it away offered US

01:03 - 15.266 by stroud township and

01:03 - 15.941 the Attorney

01:03 - 17.355 General your critique I

01:03 - 18.542 actually started your

01:03 - 19.676 argument today and

01:03 - 20.824 certainly as I

01:03 - 22.856 indicated in your brief.

01:03 - 24.626 Is something

01:03 - 27.231 I if I'm understanding correctly

01:03 - 29.156 is unless we have have.

01:03 - 30.806 Historians.

01:03 - 32.276 Who have

01:03 - 33.146 written

01:03 - 34.266 on.

01:03 - 34.826 The

01:03 - 35.946 history.

01:03 - 37.296 Of.

01:03 - 38.756 This issue.

01:03 - 40.755 I in seventeen ninety

01:03 - 41.752 wiener at the time

01:03 - 42.598 of the fourteenth

01:03 - 43.796 amendment and we don't

01:03 - 45.036 have the historical background.

01:03 - 46.510 Because you're suggesting.

01:03 - 49.226 Need to find historian who

01:03 - 50.466 interpret.

01:03 - 52.133 The ordinances that

01:03 - 53.530 have been presented

01:03 - 54.660 to US in order to

01:03 - 56.126 have the historical.

01:03 - 57.955 Background that you think is

01:03 - 59.456 necessary and you're brewing.

01:04 - 01.116 Yes.

01:04 - 02.256 I think if.

01:04 - 03.336 Township were to

01:04 - 04.796 draft an ordinance they would.

01:04 - 05.546 Of course

01:04 - 06.639 have to be within

01:04 - 07.616 the police powers.

01:04 - 10.886 Do they have to address.

01:04 - 12.896 The the second amendment

01:04 - 14.196 in that regard

01:04 - 14.987 and address

01:04 - 16.616 historical references.

01:04 - 18.956 I don't believe they do.

01:04 - 20.616 That that's not

01:04 - 21.559 that's not what

01:04 - 22.586 jurisdictions do.

01:04 - 24.956 I think it has to proceed.

01:04 - 26.946 To this level.

01:04 - 28.236 Or to a.

01:04 - 30.046 Commonwealth court

01:04 - 31.076 level or something

01:04 - 33.026 where the court analyzes.

01:04 - 34.826 Historical analysis

01:04 - 37.706 mr Kramer do you agree that

01:04 - 38.856 this court.

01:04 - 40.976 Could take if we so choose.

01:04 - 42.366 Could take.

01:04 - 43.826 Judicial notice

01:04 - 44.426 of.

01:04 - 45.896 The various

01:04 - 47.276 historical.

01:04 - 49.720 Regulations and

01:04 - 51.384 laws the basically the

01:04 - 52.839 history on this issue

01:04 - 54.506 do you think we can do

01:04 - 55.826 that on our own is it.

01:04 - 57.130 Appropriate for US

01:04 - 58.556 to conduct that judicial.

01:04 - 00.926 Conduct that analysis.

01:05 - 03.596 I want to show that not what

01:05 - 04.916 justice Thomas

01:05 - 06.386 laid out for US

01:05 - 06.986 again.

01:05 - 08.428 He says.

01:05 - 10.316 Don't show me a

01:05 - 12.361 batch I think the word don't

01:05 - 14.426 show me a batch of regulations.

01:05 - 16.304 Don't know whether

01:05 - 17.291 that means he doesn't

01:05 - 17.933 want to look at

01:05 - 18.836 regulations and all

01:05 - 20.096 that wouldn't I wonder

01:05 - 21.416 isn't that

01:05 - 22.711 just the concept

01:05 - 24.266 of judicial notice.

01:05 - 25.946 More broad

01:05 - 28.028 than just looking at regulations

01:05 - 28.763 I mean if we

01:05 - 30.116 want to look at the.

01:05 - 31.745 Entire historical

01:05 - 33.206 context we could.

01:05 - 35.066 If we chose to correct.

01:05 - 37.868 I would agree I mean

01:05 - 39.027 if the court would

01:05 - 40.243 like to look at other

01:05 - 41.636 circumstances compared

01:05 - 42.969 to my client they certainly

01:05 - 44.606 can call that into account but.

01:05 - 46.232 First of all we

01:05 - 47.090 don't know what my

01:05 - 48.506 client circumstances are really.

01:05 - 49.256 About

01:05 - 50.096 I agree with you

01:05 - 51.246 largely.

01:05 - 53.856 Well.

01:05 - 56.276 Justices of the

01:05 - 57.236 supreme court to.

01:05 - 58.076 It

01:05 - 59.276 a privilege to be able

01:05 - 00.536 to bring this case to you

01:06 - 02.576 and I'm off to the poconos.

01:06 - 07.766 Yeah that's a very good closing.

01:06 - 10.046 All three of you

01:06 - 11.346 council did.

01:06 - 13.077 Tremendous job and represented

01:06 - 14.516 your clients and make US

01:06 - 15.896 well so thank you.

01:06 - 19.316 The next case on the list

01:06 - 20.386 is the department

01:06 - 21.336 of environmental

01:06 - 22.232 protection vs the

01:06 - 23.606 Pennsylvania legislative

01:06 - 24.606 reference bureau.

01:06 - 25.962 There were a lot

01:06 - 26.899 of parties and a

01:06 - 27.575 lot of briefs

01:06 - 28.826 involved in this case.

01:06 - 30.412 Because it involves

01:06 - 31.496 a critical issue.

01:06 - 32.856 Relating to

01:06 - 34.556 two branches of government.

01:06 - 36.146 The executive branch

01:06 - 37.976 and the dj general assembly.

01:06 - 40.376 They dispute the validity.

01:06 - 42.506 Of an air pollution regulation.

01:06 - 43.473 That allows

01:06 - 45.086 Pennsylvania to participate

01:06 - 46.290 in the regional

01:06 - 48.326 greenhouse gas initiative.

01:06 - 50.286 This case presents

01:06 - 52.226 separation of powers concerns

01:06 - 53.437 as well as important

01:06 - 54.596 environmental issues.

01:06 - 56.510 The case starts with an

01:06 - 58.076 executive branch regulation.

01:06 - 59.816 That was referred to as

01:06 - 01.911 the regional greenhouse gas

01:07 - 04.406 initiative or r g g I for short.

01:07 - 06.309 They are dg eyes

01:07 - 08.096 at ten state initiative.

01:07 - 09.368 The purpose of

01:07 - 10.736 which is to cut carbon

01:07 - 12.408 dioxide pollution from

01:07 - 14.306 fossil fuel fired electric.

01:07 - 16.076 Generating plants

01:07 - 17.286 in the northeast

01:07 - 18.866 and mid Atlantic states.

01:07 - 21.046 The rg I regulation

01:07 - 22.436 was under review

01:07 - 23.816 by the general assembly.

01:07 - 25.132 Which ultimately

01:07 - 26.816 disapproved the regulation

01:07 - 29.006 by a concurrent resolution.

01:07 - 31.736 Then governor wolf

01:07 - 32.946 vetoed.

01:07 - 34.176 The disapproval.

01:07 - 35.916 Overriding it.

01:07 - 37.903 Following the senate

01:07 - 39.716 failure to override that veto.

01:07 - 41.816 Of the concurrent resolution

01:07 - 42.812 the status the

01:07 - 44.396 Pennsylvania State Senate.

01:07 - 46.346 President pro tem.

01:07 - 47.816 Jake corman

01:07 - 49.646 requested that the commonwealth

01:07 - 51.116 court issue an injunction.

01:07 - 52.878 Preventing the regulations

01:07 - 53.996 for being published.

01:07 - 56.876 The commonwealth court held.

01:07 - 58.376 A fact finding hearing

01:07 - 00.026 and granted the injunction.

01:08 - 02.662 The department environmental

01:08 - 03.595 protection or dp

01:08 - 04.766 and other parties.

01:08 - 06.487 Appealed to the supreme

01:08 - 07.946 court of Pennsylvania.

01:08 - 10.655 The court agreed to hear

01:08 - 12.476 oral argument on five issues

01:08 - 13.815 and the rest of the

01:08 - 15.206 issues which are several

01:08 - 16.616 are submitted on brief.

01:08 - 19.590 The preliminary injunction

01:08 - 20.876 stops the department's

01:08 - 22.556 rgr regulation

01:08 - 24.356 from becoming effective.

01:08 - 25.556 So

01:08 - 27.449 if the supreme court reverses

01:08 - 28.856 the commonwealth court.

01:08 - 31.136 That will enable Pennsylvania to

01:08 - 32.751 start participating

01:08 - 34.016 in the r g g I.

01:08 - 36.536 The five issues being.

01:08 - 38.016 Argued today they

01:08 - 38.982 include questions

01:08 - 39.914 regarding whether

01:08 - 40.697 the commonwealth

01:08 - 41.876 court correctly issued

01:08 - 43.376 the preliminary injunction.

01:08 - 45.036 Here are the questions.

01:08 - 46.941 Whether the funds

01:08 - 47.882 received from the

01:08 - 48.623 purchase of the

01:08 - 49.616 emissions credits.

01:08 - 51.006 Are fees

01:08 - 52.086 or taxes.

01:08 - 53.826 Number two.

01:08 - 55.354 Whether the senators

01:08 - 56.816 who filed the injunction

01:08 - 58.595 demonstrated that they

01:08 - 00.386 suffer irreparable harm.

01:09 - 01.863 If the injunction

01:09 - 03.086 is not sustained.

01:09 - 05.136 Number three.

01:09 - 06.133 Whether the car

01:09 - 07.046 commonwealth court

01:09 - 08.759 in issuing the injunction

01:09 - 10.616 failed to balance the harms

01:09 - 11.845 to be suffered by

01:09 - 12.853 the senders against

01:09 - 13.668 the harm suffered

01:09 - 14.726 by the commonwealth.

01:09 - 16.656 Number for

01:09 - 18.483 whether the commonwealth court

01:09 - 20.006 failed to properly consider

01:09 - 21.066 the harm to the

01:09 - 22.266 public if the clean

01:09 - 23.235 air regulation is

01:09 - 24.266 not implemented.

01:09 - 26.316 And finally.

01:09 - 26.996 Whether.

01:09 - 29.119 Whether they are sustaining the

01:09 - 30.196 injunction actually

01:09 - 31.106 stops the harm

01:09 - 32.424 that would occur to the

01:09 - 33.558 senate and interveners

01:09 - 34.406 if the if they are

01:09 - 35.306 allowed to remain

01:09 - 36.306 in effect.

01:09 - 37.343 So a lot of

01:09 - 38.291 questions that you're

01:09 - 38.826 going to hear

01:09 - 39.776 during this argument.

01:09 - 41.502 Let me just review some of the

01:09 - 42.410 arguments contained

01:09 - 43.466 within those points.

01:09 - 46.639 The issue of whether

01:09 - 48.656 the money collected

01:09 - 48.927 through the emission

01:09 - 49.316 auctions are fees or taxes

01:09 - 50.629 is probably the most

01:09 - 52.046 important in the argument

01:09 - 53.306 and should be focused on.

01:09 - 55.265 This is because the

01:09 - 56.304 general assembly

01:09 - 57.572 has the sole authority

01:09 - 58.556 to enact taxes.

01:09 - 00.199 Here the commonwealth

01:10 - 01.076 argues the money

01:10 - 01.950 generated from the

01:10 - 02.876 emissions credits

01:10 - 04.376 are fees.

01:10 - 05.636 Because they

01:10 - 07.344 the fund is not for the sole

01:10 - 08.966 purpose of raising revenue.

01:10 - 10.480 But are to be

01:10 - 12.056 deposited statutorily

01:10 - 13.826 in a clean air fund

01:10 - 15.236 not the Pennsylvania

01:10 - 16.076 general fund.

01:10 - 18.716 The commonwealth also argues

01:10 - 20.396 that the purchase of allowances

01:10 - 21.296 of emissions

01:10 - 23.174 for emissions is voluntary and

01:10 - 24.113 solely a decision

01:10 - 25.166 of the purchaser.

01:10 - 26.359 Because the

01:10 - 27.549 income and paint is a

01:10 - 28.169 payment that

01:10 - 29.516 provides private benefit

01:10 - 30.479 the commonwealth

01:10 - 31.616 argues that it's a feat.

01:10 - 33.006 Not attacks.

01:10 - 34.656 In response.

01:10 - 35.425 The senator

01:10 - 36.711 intervenors reviewed the

01:10 - 37.403 criterion that

01:10 - 38.396 determines whether

01:10 - 39.606 a charge that.

01:10 - 41.117 That produces income

01:10 - 42.926 is whether it's a fee or tax.

01:10 - 44.534 Using case law that

01:10 - 45.836 has been established.

01:10 - 47.507 One of the criterion

01:10 - 48.656 is the money collected

01:10 - 50.550 is subject to supervision

01:10 - 51.596 by the agency.

01:10 - 54.022 The senator intervenors

01:10 - 55.466 argue because anyone.

01:10 - 57.086 Anyone anywhere.

01:10 - 59.248 Emission allowances.

01:10 - 01.044 Not just companies subject

01:11 - 02.488 to the agency oversight.

01:11 - 04.475 The funds are not subject

01:11 - 06.148 to supervision by the agency

01:11 - 07.235 and therefore

01:11 - 08.518 they are not a fee.

01:11 - 10.978 But an improper tax.

01:11 - 13.190 In response to the

01:11 - 14.638 question about harm suffered

01:11 - 16.168 by the senator he intervenors.

01:11 - 17.728 The commonwealth argues.

01:11 - 18.718 They suffered

01:11 - 20.098 no individual harm.

01:11 - 21.598 However

01:11 - 22.748 the senator interviewed

01:11 - 24.148 fingers argue that.

01:11 - 25.738 Irreparable harm

01:11 - 27.778 occurs when a offending conduct

01:11 - 29.068 violates.

01:11 - 31.108 A statutory mandate.

01:11 - 32.595 They argue that it

01:11 - 33.778 is nonsensical then

01:11 - 34.914 to claim that an

01:11 - 36.125 unconstitutional harm

01:11 - 37.177 such as usurping the

01:11 - 38.338 power of the general

01:11 - 39.958 assembly to enact a tax.

01:11 - 41.797 Does not create per

01:11 - 43.408 se irreparable injury.

01:11 - 46.558 Existing law holds

01:11 - 48.432 that we're an entity other than

01:11 - 49.519 the general assembly

01:11 - 50.338 exercises the

01:11 - 51.238 authority of the

01:11 - 52.123 general assembly

01:11 - 53.698 in violation of the separation.

01:11 - 55.418 Of powers.

01:11 - 56.818 Doctrine.

01:11 - 58.208 That action that

01:11 - 58.978 results

01:11 - 59.842 in individual

01:11 - 01.064 injured injury to the

01:12 - 02.818 members of the general assembly.

01:12 - 06.388 Regarding the third question

01:12 - 08.158 about balancing the harms

01:12 - 09.445 the commonwealth argues

01:12 - 10.888 that it will not be able to

01:12 - 12.057 participate in the

01:12 - 13.198 emissions auctions

01:12 - 15.209 and therefore not receive the

01:12 - 17.188 funds from the auction proceeds.

01:12 - 19.114 It also argues that

01:12 - 20.076 the release of the

01:12 - 20.988 air pollutants into

01:12 - 21.808 the environment

01:12 - 23.394 is directly harmful to the

01:12 - 24.748 citizens of Pennsylvania

01:12 - 25.710 and will cause

01:12 - 26.908 serious health risks.

01:12 - 28.768 That are not reversible.

01:12 - 30.461 In response to the

01:12 - 32.038 senators interveners argue.

01:12 - 33.618 That the supreme court

01:12 - 34.648 must give deference

01:12 - 35.755 to the commonwealth

01:12 - 36.538 court findings.

01:12 - 38.579 The commonwealth court in his

01:12 - 39.134 case remember

01:12 - 40.078 was the trial court.

01:12 - 42.128 And because that.

01:12 - 43.420 Court issued the

01:12 - 44.488 findings of fact

01:12 - 45.958 and weighed the evidence

01:12 - 47.698 and determine credibility

01:12 - 49.528 their findings should remain.

01:12 - 51.795 They argue that unless

01:12 - 52.698 the supreme court

01:12 - 53.741 finds the commonwealth

01:12 - 54.598 court abused its

01:12 - 55.318 discretion

01:12 - 56.938 the finding should remain

01:12 - 57.929 and the commonwealth

01:12 - 58.948 court's balancing harm

01:12 - 00.148 should be upheld.

01:13 - 02.815 The commonwealth answers

01:13 - 03.958 but the fourth question.

01:13 - 05.299 Inquiring whether the

01:13 - 06.212 commonwealth court

01:13 - 06.987 properly assessed

01:13 - 07.948 the public interest

01:13 - 08.826 and the harm

01:13 - 09.898 caused to the public

01:13 - 11.007 if the regulation is

01:13 - 11.878 not implemented.

01:13 - 13.598 They argue.

01:13 - 14.981 That there's a

01:13 - 16.198 long list of benefits.

01:13 - 18.088 For implementing the regulation.

01:13 - 19.473 The benefits they

01:13 - 20.391 set forth include

01:13 - 21.988 economic and how health benefits

01:13 - 24.628 as well as morbidity prevention.

01:13 - 26.468 In response

01:13 - 27.801 the senator interviewers

01:13 - 28.543 argue that the

01:13 - 29.468 como port considered

01:13 - 30.628 these public's interest

01:13 - 31.844 when it determined the

01:13 - 33.058 implementation of the law.

01:13 - 34.568 And.

01:13 - 35.935 It determined that it was

01:13 - 37.438 likely to be unconstitutional.

01:13 - 39.418 And that cannot be

01:13 - 40.738 in the public interest.

01:13 - 42.488 They also argue.

01:13 - 43.794 That the commonwealth

01:13 - 45.118 court considered and found

01:13 - 47.338 the testimony of the dp.

01:13 - 49.108 Of the purported benefits

01:13 - 51.478 and the rg I rulemaking.

01:13 - 52.988 Unpersuasive.

01:13 - 54.778 That was his finding.

01:13 - 57.538 Finally the commonwealth argues.

01:13 - 58.690 The harm alleged

01:13 - 59.889 by senator intervenors

01:13 - 00.736 in their petition

01:14 - 01.588 for injunction.

01:14 - 02.954 Are not addressed by

01:14 - 04.288 continuing the injunction.

01:14 - 06.021 Namely they argue the

01:14 - 07.528 regulation has been published.

01:14 - 09.658 And so the deed is done.

01:14 - 10.846 The senator

01:14 - 12.081 interviewers arguments in

01:14 - 13.224 support of the injunction

01:14 - 14.188 therefore are moot.

01:14 - 16.918 The commonwealth asserts

01:14 - 17.966 that because senator

01:14 - 18.930 interviewers did not

01:14 - 19.891 request the injunction

01:14 - 20.638 to be issued to

01:14 - 22.288 prohibit implementation.

01:14 - 23.791 Or enforcement of

01:14 - 25.138 the reg regulation.

01:14 - 26.972 But just requested

01:14 - 28.678 relief from publication.

01:14 - 30.495 The relief granted

01:14 - 31.629 by the injunction

01:14 - 32.642 is not related to

01:14 - 33.838 the relief sought.

01:14 - 36.688 The fools senate did not vote.

01:14 - 39.478 To override the governor's veto.

01:14 - 40.612 Which led to the

01:14 - 41.638 publication of the.

01:14 - 43.088 Regulations

01:14 - 44.061 and therefore the

01:14 - 45.208 interviewer's arguments.

01:14 - 46.598 Are moot.

01:14 - 48.333 But the cemetery

01:14 - 49.514 intervenors argue the

01:14 - 50.437 commonwealth court

01:14 - 51.928 found implementing the rg I

01:14 - 52.588 rulemaking

01:14 - 54.328 would cause more harm.

01:14 - 56.548 Because the dp regulations.

01:14 - 57.808 Usurp

01:14 - 59.095 the authority of the members

01:14 - 00.118 of the general assembly

01:15 - 02.518 to unconstitutionally tax

01:15 - 04.018 Pennsylvania business

01:15 - 05.348 and residents.

01:15 - 07.329 Therefore the engines

01:15 - 08.368 one is appropriate.

01:15 - 10.018 Relief and preventing the

01:15 - 10.870 regulations from

01:15 - 11.938 going into effect.

01:15 - 13.738 Is highly appropriate.

01:15 - 14.930 It'll be an

01:15 - 15.868 interesting argument.

01:15 - 17.318 Let's go listen.

01:15 - 47.068 Three and.

01:15 - 48.548 Produce.

01:15 - 09.328 Three

01:16 - 10.448 awesome.

01:16 - 16.168 In.

01:16 - 21.788 Morning your honor.

01:16 - 23.893 Madam chief justice and

01:16 - 25.198 the justices of the court.

01:16 - 26.998 My name is Matthew white.

01:16 - 29.668 Michael council's Tom page look

01:16 - 30.838 my partner as well.

01:16 - 33.280 I'm here on behalf

01:16 - 34.282 of secretary acting

01:16 - 35.426 secretary Richard negrin

01:16 - 36.478 of the department of

01:16 - 37.738 environmental protection

01:16 - 39.268 and as the

01:16 - 40.048 chairman

01:16 - 41.816 of the acting chairman of the

01:16 - 43.528 environmental quality board.

01:16 - 44.968 If it's

01:16 - 46.656 ok with the court I will

01:16 - 48.298 refer to the department

01:16 - 49.648 and environment according to

01:16 - 50.488 playboy

01:16 - 51.838 just as the department.

01:16 - 53.378 Or the agency.

01:16 - 55.027 Technically when

01:16 - 56.098 this case started.

01:16 - 57.810 Started in a

01:16 - 59.201 different procedural

01:16 - 00.338 context and it was

01:17 - 01.858 just an action by the.

01:17 - 03.549 Acting secretary then then

01:17 - 05.008 acting secretary to get the

01:17 - 06.218 regulations.

01:17 - 07.358 Promulgated.

01:17 - 08.068 I think it's

01:17 - 09.089 easier just to think

01:17 - 10.192 about this as an action.

01:17 - 11.519 An injunction against

01:17 - 12.238 the department.

01:17 - 15.028 Council could you lift your

01:17 - 16.768 microphone yes I'm sorry.

01:17 - 17.968 Is that better.

01:17 - 19.328 Than you think.

01:17 - 23.128 Council Jessica O'Neill

01:17 - 24.199 is representing

01:17 - 25.498 intervenor parties.

01:17 - 27.598 There's

01:17 - 29.668 actually three separate appeals

01:17 - 30.777 to my understanding

01:17 - 31.655 that I'm going to

01:17 - 32.668 address the injunction

01:17 - 33.778 against the department

01:17 - 34.618 and

01:17 - 35.687 attorney O'Neill

01:17 - 36.658 will be addressing

01:17 - 38.248 the intervention issues

01:17 - 40.123 she will also be addressing some

01:17 - 40.897 separate issues

01:17 - 42.088 that her clients have

01:17 - 43.408 with respect to.

01:17 - 44.526 The environmental

01:17 - 45.248 rights amendment.

01:17 - 46.768 And how that

01:17 - 48.088 impacts the injunction

01:17 - 49.011 as well it's not

01:17 - 49.830 an argument that

01:17 - 50.908 the department may.

01:17 - 52.268 Get cancelled

01:17 - 53.259 before you start let

01:17 - 54.748 me ask you that question I mean.

01:17 - 56.458 The count

01:17 - 57.773 the department is

01:17 - 59.106 not taking the view

01:17 - 00.500 that the environmental

01:18 - 01.708 rights amendment.

01:18 - 04.108 Comes into play in this case.

01:18 - 06.308 You're on a.

01:18 - 07.478 Diet.

01:18 - 08.698 I think

01:18 - 10.274 I think our position is that the

01:18 - 11.758 environmental rights amendment.

01:18 - 12.996 Applies to all

01:18 - 14.292 actions taken by the

01:18 - 15.293 commonwealth that

01:18 - 16.768 impact the environment.

01:18 - 18.278 But from.

01:18 - 21.268 From the regulatory standpoint

01:18 - 22.348 the environmental

01:18 - 23.182 rights amendment

01:18 - 24.060 was not relied upon

01:18 - 24.988 by the department.

01:18 - 27.268 In promulgating the regulations.

01:18 - 30.075 So I agree with you on that it

01:18 - 32.278 does apply to the actions and.

01:18 - 33.698 The court's.

01:18 - 34.816 Actions to enjoin

01:18 - 35.713 this but it was

01:18 - 36.607 not anything that

01:18 - 37.558 was part of the.

01:18 - 39.188 The record.

01:18 - 41.108 On.

01:18 - 42.227 In the promulgation

01:18 - 42.958 of regulations

01:18 - 44.349 you're going to be

01:18 - 46.337 addressing the distinction

01:18 - 47.614 between taxi taxes

01:18 - 49.108 and life I think be

01:18 - 50.452 and will be addressing

01:18 - 51.342 that and some other

01:18 - 52.146 issues with respect

01:18 - 53.038 to the injection of

01:18 - 54.108 Jake so I'll I'll save

01:18 - 55.089 my questions about

01:18 - 56.165 the environment rights

01:18 - 57.148 amendment for that

01:18 - 57.988 point in time men

01:18 - 59.168 thank you your honor.

01:19 - 01.868 This court.

01:19 - 03.096 And the courts in the

01:19 - 03.984 commonwealth has

01:19 - 04.722 consistently so

01:19 - 05.908 for the six part test.

01:19 - 06.837 For granting a

01:19 - 07.918 preliminary injunction.

01:19 - 10.841 Standard in that test

01:19 - 12.136 that the movie party

01:19 - 13.312 bears a heavy burden

01:19 - 14.668 to establish each and

01:19 - 15.668 every element.

01:19 - 17.034 These elements include

01:19 - 18.208 a clear right to relief.

01:19 - 20.244 The moving party

01:19 - 21.471 will suffer irreparable

01:19 - 22.550 harm if the injunction

01:19 - 23.338 is not granted

01:19 - 25.287 and that the harm the moving

01:19 - 26.878 party will suffer outweighs

01:19 - 27.838 the harm caused

01:19 - 28.768 by the injunction.

01:19 - 30.747 In this case the

01:19 - 31.918 commonwealth court

01:19 - 33.598 in practical effect.

01:19 - 34.958 Collapsed

01:19 - 36.418 the six part test.

01:19 - 37.528 Into one

01:19 - 38.708 into one question.

01:19 - 41.727 For legislators for individual

01:19 - 43.648 legislators but for centers

01:19 - 45.718 who opposed a regi regulation.

01:19 - 47.413 Raise merely a

01:19 - 48.928 substantial question.

01:19 - 50.293 That the challenge

01:19 - 51.778 regulations contrary to law.

01:19 - 53.881 When the court

01:19 - 55.138 made that finding.

01:19 - 55.858 It

01:19 - 57.598 by definition found

01:19 - 58.798 that there were per

01:19 - 00.058 se irreparable harm.

01:20 - 02.818 Once the court made that finding

01:20 - 04.438 it then found that.

01:20 - 06.268 The moving parties

01:20 - 08.278 won all the other elements.

01:20 - 09.478 And

01:20 - 11.254 the court did no analysis

01:20 - 12.718 of the six part test

01:20 - 14.908 match much less any analysis

01:20 - 15.478 to

01:20 - 16.018 two.

01:20 - 17.295 That would put any

01:20 - 18.409 kind of substantial

01:20 - 19.948 burden on the moving parties

01:20 - 21.189 to establish their

01:20 - 22.018 right to relief.

01:20 - 24.317 If a preliminary

01:20 - 25.325 injunction by to

01:20 - 27.118 an executive agency regulation.

01:20 - 29.458 By individual legislators.

01:20 - 31.269 Is going to be decided

01:20 - 32.638 by a one factor test.

01:20 - 34.267 Then instead of

01:20 - 35.801 the six factor test this

01:20 - 37.157 court should explicitly

01:20 - 38.458 say that's the case.

01:20 - 39.609 But we don't think

01:20 - 40.293 that's the law of

01:20 - 40.976 Pennsylvania and we

01:20 - 42.058 don't think it should be the

01:20 - 42.358 law

01:20 - 43.538 of Pennsylvania.

01:20 - 45.718 I'm going

01:20 - 46.198 to

01:20 - 47.818 win when I.

01:20 - 50.158 When is it appropriate

01:20 - 53.220 to deviate from the requirement

01:20 - 55.738 of clear right to relief.

01:20 - 57.427 On and fall back

01:20 - 58.866 on the presentation

01:20 - 00.718 of a substantial question.

01:21 - 03.823 The owner to it it's a very

01:21 - 04.335 interesting

01:21 - 05.456 question that the the.

01:21 - 06.236 The

01:21 - 08.546 the concept of substantial.

01:21 - 11.144 In injunction practice

01:21 - 12.430 generally for civil

01:21 - 13.285 litigation not

01:21 - 14.756 necessarily involving.

01:21 - 17.846 Agency regulations

01:21 - 19.130 the test is clear

01:21 - 20.276 right to relief.

01:21 - 22.195 This court has

01:21 - 23.971 developed a shorthand I

01:21 - 25.179 think that says a

01:21 - 26.816 substantial question.

01:21 - 28.744 I believe coming out of

01:21 - 30.356 the Marcellus shale case

01:21 - 31.932 initially the judge the judge

01:21 - 33.296 brought then judge Robson

01:21 - 35.216 and some other decisions.

01:21 - 38.066 That at the substantial question

01:21 - 40.136 was simply a way to say

01:21 - 41.186 you don't have to

01:21 - 42.382 prove the moving party

01:21 - 43.427 doesn't have to prove

01:21 - 44.576 that they're right on

01:21 - 45.116 the law.

01:21 - 46.818 They just have to prove that

01:21 - 48.266 there's a substantial question.

01:21 - 50.456 I view that as.

01:21 - 51.756 What does that mean

01:21 - 52.836 I mean.

01:21 - 54.056 Let me let me let me

01:21 - 54.746 I.

01:21 - 57.296 Suggest to you my understanding

01:21 - 59.426 of the deviation from.

01:22 - 00.836 a

01:22 - 02.036 clear right to relief.

01:22 - 03.846 And and that.

01:22 - 06.096 I'm going back to

01:22 - 08.486 an Fisher vs dpw one

01:22 - 11.033 which way's the injunction

01:22 - 13.526 of ip abortion control act

01:22 - 15.686 provisions on medicaid back in.

01:22 - 16.763 Gear early nineteen

01:22 - 17.487 eighties because.

01:22 - 18.266 On

01:22 - 19.556 that court.

01:22 - 21.326 First found.

01:22 - 22.946 That the airways

01:22 - 24.648 are clear irreparable

01:22 - 26.396 harm that would ensue.

01:22 - 30.146 Second found that this ways I

01:22 - 31.356 intended to

01:22 - 32.798 preserve the status

01:22 - 34.616 quo the entry of being an

01:22 - 35.426 injunction.

01:22 - 37.646 Only after finding.

01:22 - 40.277 That all of the other elements

01:22 - 42.176 necessary to establish.

01:22 - 43.382 A right to a

01:22 - 44.906 preliminary injunction.

01:22 - 46.706 Dead the Fisher court.

01:22 - 49.796 What quoting some of it's.

01:22 - 52.136 Previous cases.

01:22 - 53.516 Only then.

01:22 - 55.679 Can you deviate from the

01:22 - 57.746 clear right to relief and say

01:22 - 59.200 there's a substantial

01:22 - 00.415 question here and

01:23 - 01.820 since all of the other

01:23 - 03.356 factors have been met.

01:23 - 05.396 We will now

01:23 - 06.696 enter it'd be.

01:23 - 07.802 They entered an

01:23 - 08.966 injunction in that coin.

01:23 - 11.184 I agree with that your honor I

01:23 - 12.476 do believe that that's

01:23 - 13.596 that's been.

01:23 - 15.216 That's.

01:23 - 16.511 That's what's been

01:23 - 17.358 missing from some

01:23 - 18.158 of the more recent

01:23 - 19.096 cases that come out

01:23 - 20.166 commonwealth court

01:23 - 21.026 that analysis

01:23 - 22.298 that says the other

01:23 - 24.176 elements have to be met first.

01:23 - 25.601 Before you find that

01:23 - 26.816 there's a substantial.

01:23 - 28.766 Only a substantial question.

01:23 - 31.556 There's there's no equating.

01:23 - 33.970 On the phrase clear right to

01:23 - 34.808 relief with a

01:23 - 36.296 substantial question.

01:23 - 38.758 Fifty fifty does not

01:23 - 40.586 equal a clear right to relief

01:23 - 41.957 I agree with that your honor.

01:23 - 42.866 And

01:23 - 44.996 what what what percentage then

01:23 - 47.066 of possibility of success.

01:23 - 48.660 Would meet clear

01:23 - 49.895 right to relief if fifty

01:23 - 50.891 fifty is not adequate

01:23 - 51.986 and we know you don't

01:23 - 52.535 need to be one

01:23 - 53.606 hundred per cent correct.

01:23 - 55.356 Where in the continuum

01:23 - 56.996 between fifty and one hundred.

01:23 - 58.590 Is your view of clear

01:23 - 00.356 writer or clear right to relief.

01:24 - 01.256 Well.

01:24 - 02.881 I think your honor when

01:24 - 04.042 you have the context

01:24 - 05.307 of a polluter injunction

01:24 - 06.206 which are often

01:24 - 07.226 times done in a very.

01:24 - 09.206 Expedited fashion this was

01:24 - 10.436 fairly expedited.

01:24 - 12.566 You want to make sure the

01:24 - 13.453 court wants to

01:24 - 14.524 make sure that they

01:24 - 16.106 they are feeling very certain.

01:24 - 17.722 If they're going to

01:24 - 18.926 use some alleged.

01:24 - 22.436 Violation of law

01:24 - 24.956 as the basis to enjoin conduct

01:24 - 26.002 I think that's

01:24 - 27.176 especially the case

01:24 - 28.316 when you have

01:24 - 28.646 a.

01:24 - 30.656 Co-equal branches of government

01:24 - 32.186 and actually it's not

01:24 - 32.952 it's not co-equal

01:24 - 33.836 branch of government.

01:24 - 35.636 I appreciate where you're saying

01:24 - 37.136 I'm you adopted.

01:24 - 39.236 Justice donahue his view.

01:24 - 40.677 That it has to be

01:24 - 42.086 more than fifty fifty.

01:24 - 44.027 The case law from this

01:24 - 44.936 court and every other

01:24 - 45.685 court that has ever

01:24 - 46.556 issued a preliminary

01:24 - 47.057 injunction in

01:24 - 48.109 Pennsylvania is legion to

01:24 - 49.082 say clear right to relief

01:24 - 49.826 does not mean you

01:24 - 50.826 have to win.

01:24 - 52.866 So.

01:24 - 54.006 I ask you.

01:24 - 54.858 Pretty simply you

01:24 - 55.912 agreed that it wasn't

01:24 - 56.736 fifty fifty and it

01:24 - 57.746 doesn't one hundred.

01:24 - 58.545 What's the

01:24 - 59.756 percentage of success.

01:25 - 02.676 Your honor I I.

01:25 - 04.312 I I can't put a numerical

01:25 - 05.366 percentage on it

01:25 - 06.802 I I I think that you

01:25 - 08.576 know it's not fifty fifty.

01:25 - 09.987 I do know that and you

01:25 - 11.066 know it is not one hundred

01:25 - 11.516 correct.

01:25 - 12.886 I would say it's

01:25 - 14.096 north of seventy five.

01:25 - 17.016 Council.

01:25 - 18.216 Council.

01:25 - 20.495 Council if I might I if I

01:25 - 22.706 might amend my fifty fifty.

01:25 - 24.095 Is it fair to say

01:25 - 25.256 that Darius is a

01:25 - 26.126 scandal

01:25 - 27.712 a question if it is

01:25 - 29.096 an open question.

01:25 - 31.026 No your honor I

01:25 - 32.846 think I think just simply being.

01:25 - 34.646 An area that that

01:25 - 35.916 that differ current.

01:25 - 37.277 Litigants can look at

01:25 - 38.816 something in different light

01:25 - 40.448 that's almost any

01:25 - 42.506 case you wouldn't be in

01:25 - 42.643 litigation if you didn't

01:25 - 42.776 have that so I think

01:25 - 44.013 I think just because

01:25 - 45.134 it's an open question

01:25 - 45.962 or something that

01:25 - 47.036 hasn't been decided.

01:25 - 48.606 Doesn't mean it's clear have

01:25 - 49.848 a right to relief and I think.

01:25 - 50.701 Conversely just

01:25 - 51.776 because something is.

01:25 - 53.486 Ironclad

01:25 - 54.556 it doesn't have to be

01:25 - 55.616 ironclad for it to be.

01:25 - 57.417 Substantial question I think

01:25 - 58.706 it's got to be something that.

01:25 - 00.386 A court looking at it

01:26 - 01.196 when it

01:26 - 02.194 has that situation

01:26 - 02.996 in front of it.

01:26 - 04.120 That it's something

01:26 - 04.796 that the court

01:26 - 06.116 has reasonable

01:26 - 07.166 expectation that

01:26 - 08.696 they're going to be right

01:26 - 09.807 when they enter the

01:26 - 11.486 injunction and ultimately right

01:26 - 12.190 when it gets

01:26 - 13.316 determined on the merits.

01:26 - 14.696 It's

01:26 - 16.064 natural to assume

01:26 - 17.267 that after entry

01:26 - 19.406 of preliminary junk injunction.

01:26 - 21.386 On that basis.

01:26 - 22.736 When the court

01:26 - 24.419 reaches the merits stage

01:26 - 25.713 if the court reaches

01:26 - 26.816 the merit stage

01:26 - 28.886 that is when the true

01:26 - 31.256 dissecting and consideration

01:26 - 33.120 of everything before

01:26 - 35.006 US would take pp place

01:26 - 36.656 and that determination.

01:26 - 38.726 May or may not.

01:26 - 40.466 Coincide with

01:26 - 41.992 what we decided on

01:26 - 43.556 preliminary injunction

01:26 - 44.546 because

01:26 - 45.986 a reasonable.

01:26 - 47.996 Opportunity for relief.

01:26 - 50.053 Does not necessarily

01:26 - 51.266 mean you win.

01:26 - 53.616 Correct.

01:26 - 55.094 Yes your honor I mean I

01:26 - 56.906 think I think that that court

01:26 - 58.302 quarter called upon

01:26 - 59.436 to exercise their

01:26 - 00.211 extraordinary

01:27 - 01.466 equity jurisdiction

01:27 - 02.576 to prevent

01:27 - 04.226 immediate irreparable harm

01:27 - 05.666 but they do so.

01:27 - 06.937 If they think that

01:27 - 08.306 they're right on the law

01:27 - 10.016 and it's not just

01:27 - 11.666 it's not just something that.

01:27 - 14.332 They might be

01:27 - 16.196 substantially right the test

01:27 - 17.486 has been developed

01:27 - 18.647 in every injunction

01:27 - 19.706 case that I've seen

01:27 - 22.046 up until we get to some of the.

01:27 - 23.846 More recent decision to.

01:27 - 25.566 Come off the court

01:27 - 26.304 or if you have

01:27 - 27.210 what just as Donny

01:27 - 28.526 who was saying this sort of.

01:27 - 30.076 All the other elements

01:27 - 30.956 are clearly met

01:27 - 33.296 I think that I think the test is

01:27 - 34.272 that it's got to

01:27 - 35.276 be clear right to.

01:27 - 37.326 Counsel I guess.

01:27 - 38.666 I'm not

01:27 - 39.896 I'm not quibbling with.

01:27 - 42.026 Justice Don Hughes.

01:27 - 43.644 View of the case

01:27 - 44.540 law that the idea

01:27 - 45.482 that the substantial

01:27 - 46.286 legal question.

01:27 - 48.035 And phraseology usually

01:27 - 49.223 arises in the context

01:27 - 50.202 of a case where all

01:27 - 51.237 the other elements

01:27 - 51.776 are present.

01:27 - 53.426 I guess were i'm.

01:27 - 54.266 Kind of

01:27 - 56.156 going to push a little bit is

01:27 - 57.449 why are we talking

01:27 - 59.096 about the word substantial

01:27 - 00.839 in relationship to the

01:28 - 02.486 likelihood of success.

01:28 - 03.816 Because.

01:28 - 06.262 I think substantial means

01:28 - 07.856 is this a big question.

01:28 - 09.336 Is it is it

01:28 - 10.676 is it dealing with.

01:28 - 11.696 With

01:28 - 13.136 abortion access

01:28 - 14.319 is it dealing with a

01:28 - 16.136 fundamental constitutional right

01:28 - 17.121 is it dealing with

01:28 - 18.206 something that is a high

01:28 - 19.766 a high profile is is it

01:28 - 21.596 is it a big question not

01:28 - 23.006 necessarily whether.

01:28 - 23.846 It's

01:28 - 24.566 and

01:28 - 25.866 it's you know.

01:28 - 27.596 Fifty one percent

01:28 - 28.622 seventy five percent or

01:28 - 29.399 ninety nine percent

01:28 - 30.386 likely you're going to

01:28 - 30.836 win but

01:28 - 32.426 there's a question.

01:28 - 33.936 That is open

01:28 - 35.726 and it's substantial

01:28 - 37.136 meaning it's important

01:28 - 39.026 and that's why we need to.

01:28 - 40.597 Stop it from going

01:28 - 42.086 forward temporarily.

01:28 - 43.449 Allow the marriage

01:28 - 44.606 decision to happen

01:28 - 45.761 and assuming all the

01:28 - 47.096 elements are present and then

01:28 - 48.045 and then we'll have

01:28 - 49.101 it resolved isn't that

01:28 - 49.804 what substantial

01:28 - 50.906 means well if that's if

01:28 - 51.853 that's the definition

01:28 - 52.627 that I do think

01:28 - 53.353 you'd go back to

01:28 - 54.356 just as Donnie whose

01:28 - 55.957 formulation of it where all

01:28 - 57.566 the other elements become

01:28 - 59.456 exceptionally important as well

01:28 - 00.767 if it's if it's just if

01:29 - 01.680 it's just an issue

01:29 - 02.409 of is this a big

01:29 - 03.506 question that we don't

01:29 - 04.506 know the answer to

01:29 - 05.558 then I think it's very

01:29 - 06.368 important that you

01:29 - 07.135 have to look at all

01:29 - 07.946 the other elements

01:29 - 09.296 and that's another base

01:29 - 11.276 if if that's the test and.

01:29 - 11.966 That

01:29 - 12.994 test was passed in

01:29 - 14.276 commonwealth court because

01:29 - 15.411 they didn't look at all

01:29 - 16.466 of the other element all

01:29 - 17.943 they took the first element

01:29 - 19.406 that said it's a big question

01:29 - 20.962 and then found everything else

01:29 - 21.703 instead of doing

01:29 - 22.586 just the opposite

01:29 - 23.827 of looking in weighing

01:29 - 24.866 the irreparable harm

01:29 - 26.216 that went right from

01:29 - 28.466 it's a big question substantial

01:29 - 29.646 and said okay

01:29 - 30.827 if it's a big questions

01:29 - 31.649 substantial then

01:29 - 32.605 there's we don't have

01:29 - 33.656 to do the irreparable

01:29 - 34.810 harm I'm analysis because

01:29 - 36.296 that's per se irreparable harm

01:29 - 37.396 and that we don't

01:29 - 38.205 have to balance

01:29 - 39.058 because it was per

01:29 - 40.106 se irreparable harm.

01:29 - 43.976 So that that is that is what

01:29 - 44.846 that

01:29 - 46.044 were commonwealth court

01:29 - 47.366 were wrong on this because

01:29 - 48.477 I think maybe they

01:29 - 49.658 were looking at US as as

01:29 - 51.356 as a big question and then.

01:29 - 52.925 Didn't look at all the

01:29 - 54.086 other analysis first the.

01:29 - 55.286 Council

01:29 - 57.007 let me ask a follow-up

01:29 - 58.496 question on an aside

01:29 - 58.931 I

01:29 - 00.386 substantial question

01:30 - 01.879 and I do not sure that

01:30 - 02.969 justice broxton and

01:30 - 03.901 I are as far apart

01:30 - 05.096 on this as it appears

01:30 - 05.812 to sound I don't

01:30 - 06.986 think we are at all but.

01:30 - 07.826 On.

01:30 - 09.986 So the commonwealth court.

01:30 - 11.126 Project

01:30 - 12.345 check.

01:30 - 14.499 Recognized a substantial

01:30 - 16.076 question and then decided it.

01:30 - 17.916 Might crack.

01:30 - 18.836 It is

01:30 - 20.126 likely attack.

01:30 - 21.501 Yes your honor

01:30 - 23.126 there was there was.

01:30 - 24.546 For.

01:30 - 25.837 Substantive challenges

01:30 - 26.786 that were brought

01:30 - 28.801 and on three of then he

01:30 - 30.716 ruled in our favor and on.

01:30 - 32.450 The issue of whether

01:30 - 33.626 the fees we're.

01:30 - 35.336 Fees instead of a

01:30 - 36.678 taxi row that he thought

01:30 - 37.605 that that might be

01:30 - 38.846 a tax and therefore it

01:30 - 40.706 was unconstitutional okay let.

01:30 - 41.486 Let let's.

01:30 - 42.816 Now your before.

01:30 - 44.636 And you're challenging that.

01:30 - 46.086 Ruling.

01:30 - 47.134 And we're going to

01:30 - 47.996 have to do something

01:30 - 49.377 we're going to have

01:30 - 50.730 cafe either attack or

01:30 - 51.116 not.

01:30 - 52.166 Am I correct

01:30 - 53.783 at that is that resolve

01:30 - 54.892 that legal issue

01:30 - 56.121 or if you're at some

01:30 - 57.416 point in the future

01:30 - 58.682 again that somebody's

01:30 - 59.486 going to say.

01:31 - 00.936 Well that way guests

01:31 - 01.946 can get preliminary.

01:31 - 03.776 Injunction and.

01:31 - 05.326 This court in deciding

01:31 - 06.386 that issue didn't

01:31 - 07.501 actually decide that

01:31 - 08.786 issue of law would we

01:31 - 10.034 not in fact be deciding

01:31 - 11.126 that issue a flaw.

01:31 - 13.640 In in.

01:31 - 16.450 Data shield law has to be

01:31 - 17.890 I think decided

01:31 - 19.214 but in in full

01:31 - 20.740 candor to the court.

01:31 - 22.360 This case.

01:31 - 23.887 Will reappear today

01:31 - 24.733 on the injunction

01:31 - 25.443 that was entered

01:31 - 26.290 about a year ago.

01:31 - 28.620 The case itself has been

01:31 - 30.400 argued on the merits.

01:31 - 32.050 In commonwealth court.

01:31 - 34.324 That argument was in November

01:31 - 35.860 we don't have a ruling yet

01:31 - 37.018 and that very

01:31 - 38.177 issue is going to be

01:31 - 38.861 determined by

01:31 - 39.970 commonwealth court.

01:31 - 41.528 Decided beforehand

01:31 - 43.030 and yes she's decided.

01:31 - 45.982 What are you

01:31 - 48.520 suggesting we decided the

01:31 - 49.168 commonwealth court

01:31 - 50.296 looks at it differently they.

01:31 - 51.649 Prevail in their ruling

01:31 - 52.870 on that issue a lot

01:31 - 53.839 now I think your

01:31 - 55.033 honours have the ability

01:31 - 55.997 to make that decision

01:31 - 57.010 as an as a matter of

01:31 - 57.946 law today I'm just I was

01:31 - 58.930 just pointing out that.

01:31 - 00.662 You do not have

01:32 - 01.669 to you have to what

01:32 - 02.721 what's what's in front

01:32 - 03.730 of the court today.

01:32 - 05.120 Is whether.

01:32 - 06.005 The commonwealth

01:32 - 06.899 court in granting

01:32 - 08.170 the preliminary injunction

01:32 - 09.880 made the right decision.

01:32 - 11.194 As to whether this is

01:32 - 12.294 a substantial question

01:32 - 13.117 of law whether was

01:32 - 13.990 a big question or

01:32 - 14.775 whether it was that's

01:32 - 15.606 not the question the

01:32 - 16.322 question is whether

01:32 - 17.230 the commonwealth court

01:32 - 18.230 was unreasonable.

01:32 - 20.290 In granting the injunction

01:32 - 20.947 whether the

01:32 - 22.253 commonwealth court had any

01:32 - 23.231 apparently reasonable

01:32 - 24.400 grounds our standard of

01:32 - 25.837 review on an injunction is

01:32 - 27.670 extraordinarily def deferential

01:32 - 29.410 to to the trial court.

01:32 - 31.400 I agree with that.

01:32 - 33.744 If we.

01:32 - 34.989 Let let me just follow

01:32 - 36.056 up on niche I still

01:32 - 37.019 am clear about what

01:32 - 38.290 we're doing here today.

01:32 - 39.340 And

01:32 - 40.679 do we decide whether

01:32 - 41.649 the commonwealth

01:32 - 42.617 court with correct

01:32 - 43.750 in finding there is

01:32 - 44.860 irreparable harm.

01:32 - 46.190 Or not.

01:32 - 47.759 This court has to

01:32 - 49.060 look at the record

01:32 - 51.094 and our which we briefed

01:32 - 53.110 and we will argue to the day.

01:32 - 55.408 That the court erred in finding

01:32 - 56.449 irreparable harm

01:32 - 58.210 because the court did no.

01:32 - 59.980 Analysis

01:33 - 02.059 in it and even on the

01:33 - 04.480 high standard of deference

01:33 - 05.237 that is afforded the

01:33 - 06.040 commonwealth court.

01:33 - 07.960 The commonwealth court Eric.

01:33 - 09.527 It did not make a

01:33 - 11.080 irreparable harm analysis.

01:33 - 12.820 On on the

01:33 - 14.140 on the fee.

01:33 - 15.470 Issue.

01:33 - 18.270 Nobody here seriously contends

01:33 - 20.050 that the regi regulation.

01:33 - 22.870 Was implemented for a purpose

01:33 - 24.323 much less a primary

01:33 - 26.200 purpose of raising revenues.

01:33 - 27.280 It was

01:33 - 28.914 implemented to regulate

01:33 - 30.430 producers of a pollutant

01:33 - 31.780 carbon dioxide

01:33 - 32.950 and to allow the

01:33 - 34.074 department to better

01:33 - 34.950 address the harms

01:33 - 35.594 resulting from

01:33 - 36.610 those admission and.

01:33 - 38.270 That department.

01:33 - 40.900 Has a statutory power and duty.

01:33 - 42.640 To adopt rules and

01:33 - 43.913 regulations quote for

01:33 - 44.964 the prep prevention

01:33 - 46.240 control reduction and

01:33 - 47.240 abatement.

01:33 - 48.460 Of air pollution.

01:33 - 50.125 The basic structure

01:33 - 51.045 of the verjee

01:33 - 52.268 regulation shows why

01:33 - 53.800 the allowances or fees.

01:33 - 55.356 To engage in a

01:33 - 56.560 specific activity.

01:33 - 58.374 That imposes significant

01:33 - 59.740 external costs that is.

01:34 - 00.700 Are

01:34 - 01.836 putting carbon dioxide

01:34 - 02.800 into the atmosphere.

01:34 - 03.948 The department

01:34 - 05.253 requires participants

01:34 - 06.730 to purchase an allowance.

01:34 - 08.030 That gives them.

01:34 - 09.130 That gives the emitter

01:34 - 11.440 a right to put one ton.

01:34 - 13.060 Of carbon dioxide

01:34 - 14.920 a pollutant into the atmosphere

01:34 - 16.246 there's a limited

01:34 - 17.560 number of of those.

01:34 - 18.950 Allowances

01:34 - 20.830 and that permits the emitter

01:34 - 22.450 to that permits

01:34 - 23.590 as a regulation.

01:34 - 25.780 It lowers the amount each year.

01:34 - 26.986 As to the number

01:34 - 28.090 of tons of carbon.

01:34 - 29.255 Dioxide that will be

01:34 - 30.310 put into the atmosphere.

01:34 - 33.040 By the way the emitters are all.

01:34 - 34.510 Energy emitters

01:34 - 36.072 energy producers with the

01:34 - 37.720 twenty five megawatt capacity

01:34 - 39.323 and have to sell ten percent

01:34 - 40.630 of their energy to the grid.

01:34 - 42.558 The regulation affects

01:34 - 44.410 about sixty six facilities

01:34 - 45.560 in the commonwealth.

01:34 - 46.730 So it's

01:34 - 47.770 that debt numbers

01:34 - 48.910 in the record actually

01:34 - 49.796 page thirteen

01:34 - 50.950 seventy one but it's.

01:34 - 52.430 A it's a.

01:34 - 53.990 No.

01:34 - 55.431 I think it's useful to

01:34 - 56.103 think about we did

01:34 - 56.772 not have this in our

01:34 - 57.580 brief but I think it's

01:34 - 58.330 useful to think about

01:34 - 00.010 this regulation applies to.

01:35 - 01.660 Sixty six facilities.

01:35 - 02.679 Does it doesn't

01:35 - 03.750 wouldn't the regulations

01:35 - 04.490 will also apply to

01:35 - 05.440 facilities outside of

01:35 - 06.440 Pennsylvania.

01:35 - 07.760 No urine.

01:35 - 09.031 So so the feet the

01:35 - 10.333 auction proceeds that

01:35 - 11.350 Pennsylvania would

01:35 - 12.880 get from participating in

01:35 - 14.410 Reggie will not include.

01:35 - 16.330 Payments for

01:35 - 17.614 credits on the regi

01:35 - 18.797 auction from outside

01:35 - 19.441 for from the

01:35 - 20.680 facilities outside of

01:35 - 22.658 Pennsylvania that the department

01:35 - 24.520 has the ability to regulate.

01:35 - 25.850 The generators

01:35 - 26.990 of.

01:35 - 28.001 Electricity within

01:35 - 28.960 the commonwealth.

01:35 - 30.470 The.

01:35 - 33.310 The allowances are acquired

01:35 - 34.570 at an auction.

01:35 - 35.779 They can actually

01:35 - 36.636 be acquired in in

01:35 - 37.266 different ways

01:35 - 38.170 they can be traded

01:35 - 39.320 like they can be.

01:35 - 40.480 There's actually.

01:35 - 41.454 The Pennsylvania

01:35 - 42.730 regulation has a way to get.

01:35 - 44.779 To do offsetting activities

01:35 - 46.540 where you can earn allowances.

01:35 - 48.470 But the

01:35 - 49.520 but.

01:35 - 50.620 The basic

01:35 - 51.384 method is that

01:35 - 52.227 there are going to

01:35 - 53.620 be acquired at these allowances.

01:35 - 56.260 The regi organization.

01:35 - 58.810 Manages those auctions

01:35 - 00.666 and then distributes back

01:36 - 02.410 to the participating states

01:36 - 04.330 their pro rata share.

01:36 - 05.660 Of the allowances

01:36 - 06.989 but itself it's going

01:36 - 08.036 to be co-mingled at

01:36 - 08.931 that point in time

01:36 - 10.030 you cannot trace the

01:36 - 10.906 amount of money that's

01:36 - 11.710 coming from Reggie

01:36 - 14.470 to the department's coffers

01:36 - 16.420 to only the sixty six

01:36 - 17.569 energy facil cities

01:36 - 18.561 in Pennsylvania that

01:36 - 19.506 you're saying are the

01:36 - 20.590 only ones regulated by

01:36 - 22.150 the regi regulation

01:36 - 23.860 the the the proceeds

01:36 - 25.766 are fungible your honor that's

01:36 - 26.730 correct but that

01:36 - 28.000 but the allowances.

01:36 - 30.004 And the allowances are actually

01:36 - 30.725 fungible because

01:36 - 31.540 they're tradable

01:36 - 33.366 but the regulatory piece

01:36 - 35.410 of this is that the allowance.

01:36 - 38.290 At certain times the year.

01:36 - 40.300 Like every six months.

01:36 - 42.640 The producers of electricity

01:36 - 43.836 have to present to

01:36 - 44.770 the commonwealth

01:36 - 46.070 to the department.

01:36 - 47.731 Their allowances they say

01:36 - 49.420 we put in this many tons of.

01:36 - 50.810 C o two

01:36 - 52.241 and here are the allowances

01:36 - 53.800 that permitted US to do that.

01:36 - 55.690 So the the

01:36 - 56.642 the regulation I

01:36 - 57.755 stand by what I said

01:36 - 58.513 regulation only

01:36 - 59.830 regulates those entities

01:37 - 00.773 the department

01:37 - 01.786 is not going to an

01:37 - 03.460 energy producer in Virginia says

01:37 - 05.020 show me your allowance

01:37 - 06.320 they don't care

01:37 - 08.101 but the department is coming to

01:37 - 09.100 the energy emitters

01:37 - 09.997 in Pennsylvania

01:37 - 11.133 that they regulate

01:37 - 12.476 that's a very important

01:37 - 13.485 with it's forcing

01:37 - 14.915 it's it's it's a regulation

01:37 - 15.820 that forces the

01:37 - 17.920 energy producers in Pennsylvania

01:37 - 19.499 to participate in

01:37 - 20.800 a regional auction

01:37 - 22.060 of credits

01:37 - 23.991 and allow all that money to

01:37 - 25.570 be pooled and then shared

01:37 - 27.010 by multiple states

01:37 - 28.167 and actually the

01:37 - 29.467 regulation is written your

01:37 - 30.442 honor that that's how

01:37 - 31.420 it's designed to be

01:37 - 32.697 implement but the regulation

01:37 - 34.120 actually has the ability for.

01:37 - 35.302 Pennsylvania just

01:37 - 36.520 to do it's own auctions

01:37 - 37.232 short but you're

01:37 - 38.056 not going to do that

01:37 - 38.800 it's not that's not

01:37 - 39.680 part of the proposal.

01:37 - 41.248 That's part of the

01:37 - 42.142 that's part of the

01:37 - 43.035 regulation that that

01:37 - 44.200 they are able to do that

01:37 - 45.250 if they choose to write.

01:37 - 46.987 But that's not how

01:37 - 47.971 it's designed right

01:37 - 48.626 now that's not

01:37 - 49.660 what this record is.

01:37 - 52.550 The.

01:37 - 56.080 The cost of the regulation.

01:37 - 57.822 Is large because

01:37 - 59.560 the problem is large.

01:38 - 02.080 Air pollution and the.

01:38 - 03.671 Cost that it brings

01:38 - 05.230 especially carbon dioxide.

01:38 - 07.660 Is indisputably

01:38 - 09.280 a very significant issue

01:38 - 10.242 and there is no

01:38 - 11.052 evidence that was

01:38 - 12.460 presented at the proceeds to be.

01:38 - 14.369 The proceeds to be

01:38 - 15.629 received in the clean

01:38 - 16.668 air fund exceed the

01:38 - 18.040 actual cost of the harm

01:38 - 19.400 to the environment.

01:38 - 21.580 Is that the test.

01:38 - 23.950 Calculate that the task is the.

01:38 - 26.406 Cost of administering

01:38 - 28.330 the regulatory scheme.

01:38 - 29.894 Which in this case

01:38 - 31.450 is cleaning up the air.

01:38 - 33.460 Yes you're on

01:38 - 33.880 the.

01:38 - 36.002 Diy terms as opposed

01:38 - 37.570 to what it costs.

01:38 - 39.370 To on.

01:38 - 41.480 Track the allocations

01:38 - 42.910 what it costs to

01:38 - 44.842 make certain that tied the

01:38 - 46.004 allocation to are

01:38 - 47.170 appropriately I

01:38 - 48.190 and.

01:38 - 49.494 Distributed among

01:38 - 50.901 the providers that dance

01:38 - 51.874 and administrative

01:38 - 53.230 costs scared as opposed

01:38 - 54.456 to the class of the

01:38 - 55.660 regulatory scheme

01:38 - 56.850 we we believe that's

01:38 - 58.035 a correct reading of

01:38 - 58.895 the this court's

01:38 - 00.190 decision from national

01:39 - 00.760 disk at.

01:39 - 01.979 Which we think

01:39 - 03.253 is I think both sides

01:39 - 04.194 agree that that's

01:39 - 05.470 the controlling case.

01:39 - 08.076 On what a fee is how do you how

01:39 - 10.450 do you what is the test for fee.

01:39 - 12.580 There's four factors in that.

01:39 - 13.750 In that test

01:39 - 15.100 what the first is

01:39 - 16.090 is the

01:39 - 18.130 is the fee applicable only

01:39 - 19.968 to a business or occupation

01:39 - 21.400 subject to supervision.

01:39 - 23.179 Of the licensing authority

01:39 - 24.580 under the police power.

01:39 - 27.040 The answer here is yes.

01:39 - 27.820 The

01:39 - 29.188 the provision applies

01:39 - 30.464 only to the sixty six

01:39 - 31.572 facilities that have

01:39 - 32.740 to come up with the

01:39 - 33.740 allowed once.

01:39 - 34.903 Is the supervision

01:39 - 36.280 and regulation actually

01:39 - 37.160 conducted by the

01:39 - 38.320 licensing authority

01:39 - 39.500 the answer is yes

01:39 - 40.415 to conduct the

01:39 - 41.980 supervision by the d e p.

01:39 - 43.570 Is the payment of

01:39 - 44.619 a fee a condition

01:39 - 46.330 upon transacting the business.