Justices hear opinions on Marcellus Shale drilling law

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Questions over whether Pennsylvania's new Marcellus Shale drilling law takes too much power away from local governments are now in the hands of six state Supreme Court justices following Wednesday's standing-room-only hearing in Pittsburgh.

The top court heard nearly two hours of arguments for and against the 6-month-old law, known as Act 13, with the heavily anti-drilling crowd chiming in at several points and drawing a scolding from the chief justice.

State attorneys were contesting the Commonwealth Court's July decision to overturn a portion of the law that limited what local zoning rules can and cannot address regarding drilling activity.

In that 4-3 decision, the majority sided with a set of municipal officials, who argued that the new law would endanger residents by requiring well pads and compressor stations to be allowed in areas where they would otherwise be prohibited by local development plans.

In addition to its zoning requirements, the new drilling law, also created a per-well fee and overhauled state environmental rules.

The legal challenge has been closely watched, with Chief Justice Ron Castille noting Wednesday that 400 pages of legal arguments had been submitted, plus 18 supportive briefs from legislators, government associations, and environmental and industry groups.

A crowd of activists, attorneys, local officials and others filled the courtroom in the City-County Building, Downtown, leaving a pile of anti-drilling signs in the hallway during the proceeding.

Justice Castille reprimanded crowd members who applauded Justice Seamus McCaffery's comment that under the law, residential communities "can now be turned into industrial areas."

And there was scattered laughter when Matt Haverstick, a Philadelphia attorney representing the state Public Utility Commission and the Department of Environmental Protection, responded to an early question about the purpose of zoning rules.

Mr. Haverstick defended the law, repeating prior arguments that all municipal zoning rights are given by state government and those rights can be changed at any time by the General Assembly.

He said there's no constitutional protection against having some incompatible uses in a particular zoning district, arguing that property owners and their neighbors have protected rights.

"All other things being equal, owners of property should be free to use their property the way they want to," Mr. Haverstick said.

The justices' most pointed questions appeared to be directed at the commonwealth attorneys.

When Mr. Haverstick cited cases that upheld putting casinos and prisons into otherwise incompatible zoning districts, Justice Max Baer asked how far the state's power extends.

"Government can reasonably interfere with a landowner's rights, but there's a point where it goes too far," he said, adding that the commonwealth "doesn't have carte blanche."

Attorneys for the mostly southwestern towns involved in the challenge -- South Fayette in Allegheny County and Cecil, Mount Pleasant, Robinson and Peters in Washington County -- argued that the law approved in February places offering a predictable regulatory environment to gas drillers above ensuring residents know what type of development might occur in their neighborhoods.

Attorney John Smith said state officials also must weigh the same criteria that towns do in determining zoning: whether it is protecting the health, safety and welfare of residents.

"That analysis was not undertaken by the General Assembly because the General Assembly didn't understand it was zoning or didn't care," Mr. Smith said.

State officials also asked the court to reverse a section of the appellate decision that struck down a section that allowed the state Department of Environmental Protection to grant waivers regarding the required distance between a gas well and certain water sources.

Commonwealth attorneys defended that provision as a proper role for DEP given its technical expertise, while the challengers said there is too little detail regarding when waivers are permissible.

There is no timeline for when a ruling must be issued in the case.

Justice Joan Orie Melvin is suspended while awaiting trial on criminal charges. A 3-3 decision by the remaining justices would affirm the lower court's ruling.

Part of the legal battle will continue next week, when another hearing is scheduled in Commonwealth Court regarding the PUC's review of drilling ordinances.

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Harrisburg Bureau chief Laura Olson: lolson@post-gazette.com or 717-787-4254. First Published October 18, 2012 4:00 AM


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