Seven communities file suit to oppose Marcellus Shale law

Source: Pittsburgh Post-Gazette, March 30, 2012
Posted on: http://envfpn.advisen.com

The seven municipalities that banded together in recent weeks in opposition to the state’s Marcellus Shale gas drilling law filed a suit Thursday, arguing that lawmakers unconstitutionally intruded on local zoning duties by mandating where drilling can occur.

The municipalities — Cecil, Peters, Mount Pleasant and Robinson in Washington County, South Fayette in Allegheny County and the two Bucks County towns of Yardley and Nockamixon — are joined in the suit by a Monroeville doctor, environmental activists from the Delaware Riverkeeper Network and a handful of municipal officials contesting the law in their personal capacities.

The 117-page suit was filed with the Commonwealth Court in Harrisburg. It goes directly to the appellate court because it involves state agencies. Among its defendants are Department of Environmental Protection Secretary Michael Krancer, state Attorney General Linda Kelly and Public Utility Commission chairman Robert Powelson.

Mr. Powelson and his fellow PUC officials are tasked under House Bill 1950 — known as Act 13 since Gov. Tom Corbett signed it Feb. 14 — with determining whether local ordinances governing gas drilling fit into the allowable parameters laid out in the new state law.

In addition to assessing a per-well impact fee and strengthening environmental regulations, the 6-week-old law creates statewide standards for where wells can be located and related operating provisions.

Municipal officials will have 120 days from April 14 to adjust ordinances that include more stringent provisions than the state standard, after which point drillers can file challenges with the PUC.

The suing municipalities, which have enacted rules that would need to be dismantled, argue that standardizing zoning rules for gas drilling is “an improper and arbitrary use of the commonwealth’s police power.” They state in the legal document that towns “will be left to plan around rather than plan for orderly growth” in their communities.

“By crafting a single set of statewide zoning rules applicable to oil and gas drilling throughout the commonwealth, the Pennsylvania General Assembly provided much sought-after predictability for the oil and gas development industry,” states the lawsuit.

“However, it did so at the expense of the predictability afforded to … the citizens of Pennsylvania whose health, safety and welfare, community development objectives, zoning districts, and concerns regarding property values were pushed aside to elevate the interests of out-of-state oil and gas companies and the owners of hydrocarbons underlying each property, who are frequently not the property owners.”

Brian Coppola, a Robinson supervisor involved in the suit, said officials there created an “orderly” system to manage the conditional-use drilling projects that come up for approval. That system, and the remainder of their zoning plan, will have to be thrown out if gas operations are allowed in any zoning district.

“Your whole comprehensive plan is thrown out the window,” Mr. Coppola said. “You’re not going to get someone to come in and put a hotel up if they’re going to have a compressor station behind them.”

The suit points to two recent cases heard by state appellate courts that the petitioners say show protection for local zoning rights in overseeing oil and gas operations. They point to one from 2009, in which the justices declared the state’s interests involve “efficient production and utilization of natural resources,” while communities are concerned with “land-use control.”

Patrick Henderson, a top Corbett aide involved in the final bill’s drafting, said Thursday that the lawsuit was under review: “We are confident the law will withstand judicial scrutiny.”

During heated debate over the legislation, Mr. Corbett repeatedly defended the zoning component, arguing that it provides consistency while allowing a “fair and impartial” review of local rules.

The suit also is critical of a provision requiring doctors not to disclose the details of any trade-secret fracking chemicals that they learn about when treating patients potentially affected by drilling activities. That provision, based on a similar law in Colorado, was blasted in the suit as prohibiting doctors from practicing “competent medicine.”

Canonsburg attorney John Smith, who is representing Cecil and Robinson in the suit, said the group is seeking an injunction from the court to stop the law’s full enactment next month. If that does not occur, the attorneys will be asking for an expedited hearing to give clarity to the municipalities that will need to reverse their ordinances.

Meanwhile, at least 16 counties already have voted to assess the drilling impact fee also contained in the law, and a handful of other have signaled their intent to collect that fee, valued as high as $50,000 per well in the initial year of production. The first round of fee revenues would be distributed this fall under Act 13.

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