Gas drilling law debated in state court

Municipalities argue they are powerless to protect residents

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HARRISBURG -- Did the state overreach in its new law outlining where drilling sites and compressor stations can be located, or are municipal officials out of bounds in seeking to retain the ability to manage the industry themselves?

That question is now before a panel of seven Commonwealth Court judges, who spent more than an hour on Wednesday morning firing questions at attorneys dueling over the legality of the state's new gas drilling law.

The standing-room-only court session was the first opportunity for lawyers representing a group of municipalities, a doctor and an environmental advocate to argue why they believe state limitations on how municipalities can craft zoning rules are inappropriate.

The standardized rules for towns would allow shale gas drilling activity in some currently prohibited areas, including residential areas. If towns do not update their regulations to meet the law approved in February, they could be challenged in court and would not be eligible to receive a portion of fees assessed on local wells.

The officials argue that allowing the industry into more areas infringes on the rights and safety of residents.

That zoning provision was scheduled to go into effect in April, but another Commonwealth Court decision granted a 120-day injunction. The remainder of the law, which enacts a per-well fee on drillers and updates the state's environmental regulations, was implemented as scheduled.

John Smith, the first of three attorneys representing municipalities to speak Wednesday morning, was able to get only a few sentences into his remarks before the judges began to pepper him -- and later the other lawyers -- with critiques.

Judge Kevin Brobson countered concerns about infringement on local rights by asking about places that do not have zoning. He later asked whether any towns currently would not have to adjust their zoning rules, a query that an industry attorney was unable to answer.

The municipalities' attorneys repeatedly said allowing "incompatible" uses in the zoning districts would undermine the overall regulatory scheme, and would give drillers special privileges compared to other companies.

Lawyers for the state replied that municipalities do not have a constitutionally protected right to zoning, and those powers can be altered by the Legislature as it sees fit.

Just as children don't have a right to object to household rules regarding how much television they can watch, municipalities -- as "creatures of the state" -- also must abide by their guidelines, said Walter Bunt, who represents two industry groups and several drilling companies.

President Judge Dan Pellegrini pressed the municipalities' attorneys on that point during their remarks, but when the commonwealth took over, he also was critical of the argument that the General Assembly has a wide berth to mandate zoning.

"Could we say that industrial farming of chicken is an important food source and we'll allow it in every district?" Judge Pellegrini asked. "Pretty soon, zoning would become irrational."

state - marcellusshale - environment

Harrisburg Bureau Chief Laura Olson: lolson@post-gazette.com or 1-717-787-4254.


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