Court throws out state zoning for Marcellus Shale drilling
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HARRISBURG -- A Commonwealth Court panel this morning threw out Pennsylvania's attempt to establish statewide zoning for Marcellus Shale drilling, setting up a likely appeal to the state's top court.
The appellate court ruled that the state cannot require local municipalities to allow gas drilling in areas that would conflict with their zoning rules, as several towns argued was the outcome of the Legislature passing and the governor signing Act 13 in February.
That law enacted a sweeping set of changes for how the oil and gas drilling industry operates within Pennsylvania, including creating an impact fee and, most controversially, dictating what municipalities can and cannot do regarding standards for gas drilling. Any municipality that did not follow those state-issued zoning guidelines stood to lose its share of the impact fee revenues and was liable to legal challenges.
A lawsuit challenging the zoning provision and other aspects of the law was filed in March, arguing that the new law prevented local officials from protecting the health and safety of their residents.
An order attached to this morning's filing declares the zoning provision null and void. A separate provision that allows state environmental officials to waive setback requirements for gas wells also is overturned.
The rest of the statute, including the impact fee to be collected and distributed this fall and the other environmental provisions, remain in effect.
The office of Gov.Tom Corbett, who strongly supported the legisaltion, issued a statement this afternoon saying he was disappointed with the decision and likely to appeal.
"Act 13 is clearly constitutional and received significant input and ultimate support from Pennsylvania's local government associations and their legal counsel," the statement said. "We will vigorously defend this law, which better protects the environment, provides revenue to local communities and regulatory certainty to both landowners and job creators."
The drilling industry wanted the legislation so that it wouldn't have to meet different zoning provisions in the state's hudnreds of municipal jurisdictions.
The majority opinion states that requiring municipalities to change their zoning rules in a way that would conflict with their development plans should not be allowed "because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications -- irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise."
"If a municipality cannot constitutionally include allowing oil and gas operations, it is no more constitutional just because the Commonwealth requires that it be done," the opinion states.
Four of the seven judges that heard the case joined in the majority opinion. However, due to a recusal by Judge Mary Hannah Leavitt, who was not on the panel considering the case's merits, there was a tie vote on whether to opinion should be "published," a classification related to whether the opinion can be cited in future cases.
A dissent was released from three members of the court panel -- Judges Kevin Brobson, Robert Simpson and Anne Covey -- arguing that the municipalities challenging the law failed to make their constitutional claim.
The ruling comes a little more than three months after another state appellate judge granted a 120-day injunction to prevent the zoning section of the law from going into effect in mid-April.
Seven municipalities -- including the southwestern towns of Cecil, Peters, South Fayette, Mount Pleasant and Robinson, plus two towns in Bucks County -- filed the lawsuit, along with a Monroeville doctor and environmental activists from the Delaware Riverkeeper Network.
Canonsburg attorney John Smith, one of several attorneys representing the municipalities in the lawsuit, argued during a June en banc hearing that allowing drilling activities in areas the state proscribed would make it difficult for local governments to protect their residents and that the statute allows the drilling industry privileges in permitting and land use that others do not have.
State lawyers replied that municipalities do not have a constitutionally protected right to zoning and that those powers can be altered by the Legislature as they see fit.
Mr. Smith said this morning that the court's decision will allow the towns that had been preparing to revise their ordinances when the earlier injunction expired next month to stop those efforts.
He added that while the court sided with the commonwealth on some provisions -- dismissing concerns from municipalities that the law treated gas drilling differently than other extraction industries, and another that alleged the Public Utility Commission was granted too much power -- the justices sided with local officials on the key portions of their argument.
"They're obviously extremely happy," Mr. Smith said of the local officials involved in the suit, "and their citizens are going to be extremely happy."
An appeal to the state Supreme Court is expected. A spokesman for the state attorney general's office, which defended the commonwealth in the lawsuit, said the ruling is under review. The governor's office could not be reached for comment.
A spokeswoman for the Public Utility Commission, which was named in the suit because of its role in reviewing zoning ordinances, said the agency also is reviewing its options.
Drew Crompton, a Senate Republican staffer who helped write the law, said the opinion does confirm that the state has the right to regulate zoning, though he disagreed with the judges' argument against how the state was exercising that power.
"Either these local municipalities are creatures of the state and we can tell them what to do, or we cannot," Mr. Crompton said. "Whether or not [the judges] like the policy judgments of the General Assembly should be irrelevant."
First Published July 26, 2012 10:47 am