State Supreme Court to hear Shale law challenge today

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When state attorneys defend the new Marcellus Shale drilling law before the Pennsylvania Supreme Court today, they'll be addressing a panel of justices who weighed in on a gas-drilling ordinance case a little more than three years ago.

In that case, the court determined that energy company Huntley & Huntley Inc. was improperly denied a permit to drill in Oakmont. But it also provided part of the foundation for the current challenge against the new statewide zoning requirement.

The unanimous opinion, issued in February 2009, stated that Pennsylvania's drilling law did not entirely preempt local rules because the two layers of government are charged with distinct aspects of oversight.

The Huntley decision was cited prominently in the Commonwealth Court's July decision overturning a portion of the new shale drilling law.

A majority panel sided with a set of mostly southwestern Pennsylvania municipalities -- which include Allegheny County's South Fayette, along with Cecil, Mount Pleasant, Robinson and Peters in Washington County -- who argued that the new law was unconstitutional because it would require local officials to allow drilling activity in areas where it would otherwise be prohibited under their local zoning plans.

Commonwealth Court President Judge Dan Pellegrini pointed to the Huntley opinion's description that state oversight focuses on the efficient production and utilization of natural resources, while zoning must match land use to "local demographic and environmental concerns."

He and three other judges overturned a portion of the law limiting local zoning rights, as well as another section that allowed the state Department of Environmental Protection to grant waivers regarding the required distance between a gas well and certain water sources.

The case is among several scheduled arguments in the Supreme Court's Pittsburgh courtroom, located in the city-county building, this morning.

Activists from several anti-drilling groups advertised the case on their websites, encouraging supporters to bring signs urging the court to protect local zoning rights.

Today's arguments will include appeals from both sides. State officials are contesting the decisions on zoning and the DEP waiver. The municipal challengers will be appealing several aspects in which the lower court did not agree with their side, including whether the Public Utility Commission should be allowed to decide whether municipal ordinances comply with the state law.

The local officials involved say they view the Huntley decision as strong precedent for their case, particularly since the six justices that ruled then are on the current court.

The seventh justice, Joan Orie Melvin, was elected after the opinion was issued. She currently is suspended from her duties while awaiting trial on corruption charges.

While that case offers insight into how justices might rule on part of the challenge, two sections of the new law related to local ordinances didn't exist in 2009, said Ross Pifer, director of the Agricultural Law Resource and Reference Center at Penn State's Dickinson School of Law.

One section of the zoning provisions is nearly identical to what existed at that time. But the new portions also prevent localities from creating their own environmental rules and -- in the only section that was overturned this summer -- creates more restrictive rules for what constitutes the "reasonable development" that communities must allow.

"Even under the Commonwealth Court ruling, there were more restrictions on municipalities than there were before," Mr. Pifer said.

In briefs filed last month, attorneys for the commonwealth appear to maintain their earlier argument that the municipalities do not have standing to challenge the law. Even if the towns did, they argue, local authority is granted by the Legislature and can be revised when the state deems necessary.

"While local municipalities certainly play an important role in Pennsylvania government, the Commonwealth Court's unyielding adherence to an idyllic Jeffersonian model of small town life improperly shifts the ultimate authority to establish economic and environmental policy from the General Assembly to the local township or borough hall," argues the state attorney general's office in its brief.

David Ball, a councilman in Peters -- the only southwestern town in the suit that has not had a challenged filed against its drilling ordinance since the appellate decision -- said local zoning powers are vital for officials to control how their towns develop. He said Peters officials have reviewed their ordinance to see what might need tweaking.

"There are some things that we're going to have to change regardless," he said, citing portions on air-quality standards that are regulated by the state. "It's okay with us as long someone is [regulating those areas]."

breaking - state

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


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