Court favors townships over state in Pa. lawsuit on zoning, shale drilling

The Commonwealth Court of Pennsylvania ruled that the state cannot restrict local governments from using zoning laws to regulate oil and gas drilling. Gov. Tom Corbett’s administration plans to appeal the ruling to the Pennsylvania Supreme Court.

The ruling applied to the land-use portion of a law, called Act 13, outlining drilling regulations for the Marcellus shale. The court also invalidated a provision requiring uniformity of local ordinances governing resource development.

Corbett believes the land-use provision was constitutional, a spokesman for the governor said July 27, adding that lawmakers sought input from Pennsylvania’s local government associations.

But seven municipalities filed a lawsuit, saying the state law violated the rights of municipalities to use their land-use powers to determine where gas wells could be drilled within their communities.

The municipalities that filed the lawsuit were Cecil, Peters, Mount Pleasant, and Robinson in Washington County, South Fayette in Allegheny County, and two Bucks County towns.

John M. Smith, attorney for Cecil and Robinson, told reporters, “This doesn’t mandate that drilling isn’t going to happen within their borders. It just puts back the balance of what’s existed since the Marcellus [drilling] started.”

Commonwealth Court of Pennsylvania Judge Dan Pelligrini said Act 13 “violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods, and makes irrational classifications.”

The court decision was split in a 4-3 ruling, with the three judges issuing a dissenting opinion in which Judge P. Kevin Brobson wrote the Pennsylvania law “strikes a balance both by providing for harvesting of those natural resources, wherever they are found,” and restricting oil and gas operations based on location and noise level.

Marcellus Shale Coalition Pres. Kathryn Z. Klaber said she believed state lawmakers are confronted with the need to provide certainty and predictability in drilling regulations.

“Lack of uniformity has long been an Achilles’ heel for Pennsylvania and must be resolved if the Commonwealth is to remain a leader in responsible American natural gas development and reap the associated economic, environmental and national security benefits,” Klaber said.

The Environmental Defense Fund issued a news release from its Austin office praising the court decision.

“We commend the court for recognizing that local governments have a constitutional responsibility to make sure oil and gas development is orderly and to ensure the rights of citizens to safe, healthy neighborhoods that aren’t steamrolled by unplanned growth,” said Scott Anderson, EDF’s senior policy advisor. “The Pennsylvania General Assembly clearly overstepped its bounds when it passed this law, and today the court got it right by saying so.”

Contact Paula Dittrick at paulad@ogjonline.com.

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