Shale law override of local rules left on hold

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HARRISBURG -- When the new Marcellus Shale drilling law goes into effect on Saturday, a 10-page section to override local drilling ordinances will be temporarily put on hold.

A state judge issued a 120-day injunction Wednesday halting those provisions of the law.

The judge's action was cheered by municipal officials involved in the suit, who argued that allowing the zoning provision to go forward would result in legal uncertainty as they brought ordinances into compliance.

"It's exactly what we requested," said Canonsburg attorney John Smith, representing several of the towns. "The court recognized that the way the legislation was drafted leaves municipalities in a state of potential peril."

Meanwhile, the bulk of the 174-page law -- including sections related to a drilling impact fee and an overhaul of state environmental regulations -- was not prohibited from going into effect on Saturday.

The partial injunction by Senior Judge Keith Quigley came hours after a morning Commonwealth Court hearing on a challenge to the new statute by local officials, a Monroeville doctor and an environmental activist.

The municipalities challenging the law -- Cecil, Peters, Mount Pleasant and Robinson in Washington County; South Fayette in Allegheny County; and two Bucks County towns -- already were provided 120 days to tweak their local drilling rules under the new law, known as Act 13.

They argued that that period creates confusion because drilling companies and state attorneys interpreted the law to invalidate local rules immediately, regardless of whether officials were using the time to revise their ordinances.

Cecil officials received a letter last month from attorneys representing MarkWest Midstream & Resources, saying they believe the town will be required to grant their permit for a compressor station once the law was to go into effect on Saturday.

The towns' attorneys asked for the current local rules to remain in place during that revision period. They argued that if permit requests like the one in Cecil are granted, half-finished projects could not be undone if the court later finds the state law unconstitutional.

"There would be no harm to industry because they could continue to conduct business," Pittsburgh attorney Jonathan Kamin said during the hearing. "The status quo is not a status quo of not operating."

Senior Deputy Attorney General Howard Hopkirk, representing the state agencies named in the suit, argued that municipalities do not have a right to challenge the law because the state has authority to determine what localities can and cannot do in their land-use rules.

Judge Quigley sided with the municipalities, stating in the order that local ordinances must remain in effect until a specific challenge finds them invalid.

"Municipalities must have an adequate opportunity to pass zoning laws that comply with Act 13 without the fear or risk that development of oil and gas operations under Act 13 will be inconsistent with later validly passed local zoning ordinances," states the order.

He added, however, some foreshadowing in the order's footnotes about the burden on the plaintiffs, saying the court "is not convinced that petitioners' likelihood of success on the merits is high."

The Corbett administration said they are reviewing their legal options.

"All this decision means is the municipalities will get an additional 120 days to come into compliance with the zoning provision of the law," Corbett spokesman Eric Shirk said.

The municipal attorneys said drilling companies are seeking to challenge the decision, but first they would need to be allowed into the case.

A hearing will be held Tuesday to determine whether the Marcellus Shale Coalition, the Pennsylvania Independent Oil and Gas Association and several drilling companies can participate.

Spokesmen for the coalition, an industry trade group, issued a statement after the ruling, saying that the group believes the legal merits of the law "will be recognized and upheld accordingly."

The zoning provisions that dominated Wednesday's discussion was highly sought by the industry, which has cited the detailed differences between local ordinances as an impediment to development.

The suit also challenges a separate provision of the law that prevents doctors from disclosing certain proprietary chemicals used in hydraulic fracturing that they may gain knowledge of in the course of treating a patient.

state

Harrisburg Bureau Chief Laura Olson: lolson@post-gazette.com or 717-787-4254. First Published April 12, 2012 12:00 AM


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