Thursday, July 26, 2012

Commonwealth Court Strikes Down Drilling Law Provisions Further Limiting Local Zoning

Commonwealth Court Thursday struck down provisions of the Marcellus Shale Drilling law enacted in February which would have further restricted the application of local zoning to drilling operations and a provision requiring DEP to issue waivers to setback requirements of the state Oil and Gas Act.
The decision leaves in tact stricter environmental standards for drilling operations and the county-adopted drilling impact fee.
This decision can be appealed to the state Supreme Court or the drilling industry or other interests may seek to pass some sort of corrective legislation in the fall legislative session or both.

The legal challenge to the Chapter of Act 13 that took over municipal zoning of oil and gas operations was challenged by Delaware Riverkeeper Network and seven municipalities: Township of Robinson, Washington County; Township of Nockamixon, Bucks County; Township of South Fayette, Allegheny County; Peters Township, Washington County; Township of Cecil, Washington County; Mount Pleasant Township, Washington County; and the Borough of Yardley Bucks County.  A doctor from southwestern Pennsylvania also was a plaintiff, Dr. Mehernosh Khan.  Unfortunately the Court did not reach the physician gag rule issue, finding the doctor did not have standing.  Counsel for Petitioners are John M. Smith, Esq., Jonathan M. Kamin, Esq., Jordan B. Yeager, Esq., William A. Johnson, Esq., and Susan Kraham of the Environmental Law Clinic, Columbia University School of Law.
A copy of the decision is available online.
Industry Comments

Marcellus Shale Coalition president Kathryn Z. Klaber issued the following statement on the ruling: “The premise for the General Assembly's action earlier this year was to provide certainty and predictability that encourages investment and job creation across the Commonwealth. Lack of uniformity has long been an Achilles’ heel for Pennsylvania and must be resolved if the Commonwealth is to remain a leader in responsible American natural gas development and reap the associated economic, environmental and national security benefits.”
Environmental Reaction
“The Court has recognized that the Pennsylvania legislature and Gov. Corbett went too far.  This is a great victory for the people of Pennsylvania, for local democracy, for property rights, for our public health, and for the clean water supplies on which we all depend,” said Jordan Yeager, attorney for plaintiffs Delaware Riverkeeper Network, Nockamixon Township and Yardley Borough.
Maya van Rossum, the Delaware Riverkeeper, stated “This is why we brought Act 13 to the Court – to petition for fairness and to fight off the heavy hand of gas and oil interests who wanted complete and utter control of every corner of every community in the state.  Pennsylvania and the environment we all depend on have won today.”  
“This court decision did what the Legislature and the Commonwealth’s government did not do – recognize that municipalities need to act to protect their residents and that under the Law we have a right to that protection and will fight for it.  This decision proves the fight is well worth it,” concluded van Rossum.
“Not only has the Court recognized that the law was unconstitutional because of the illegal preemption of municipal zoning but it also recognized the untenable waiver provisions in Act 13, which allowed drillers to have setback provisions in the law (required distances between gas wells and homes, for instance) removed completely, a nightmare that made Act 13 one of the worst pieces of environmental legislation ever passed by the state Legislature,” said Tracy Carluccio, Deputy Director, Delaware Riverkeeper Network.  
“This is a great start to addressing the lack of protection for public health and the environment from oil and gas activities here in Pennsylvania,” added Carluccio.
Legislative Comments
House Democratic Leader Frank Dermody (D-Allegheny) said the court decision to overturn significant portions of the state’s Marcellus Shale impact fee law is a resounding victory for all Pennsylvania residents.
Rep. Dermody particularly welcomed the Commonwealth Court’s rejection of the law’s override of local zoning powers. With this ruling, the longstanding authority of municipalities to regulate land uses within their boundaries is preserved.
“The preemption of local zoning power was one of the most objectionable parts of this sham Marcellus Shale law which was pushed through by Republicans and signed by Governor Corbett in February,” Rep. Dermody said. “It stripped away the zoning rights of every local community in the state.”
“The court carefully weighed testimony on this question and made the correct decision to restore the rights of municipalities and put zoning back in the hands of local officials where it belongs,” he said.
“This will not hurt the ability of natural gas drillers to conduct their operations. It simply affirms that these companies don’t get the special treatment that the governor tried to ensure for them in Act 13. They have to comply with local zoning ordinances just like everybody else.
“Development of the Marcellus Shale natural gas reserves is bringing jobs and business to many communities,” Rep. Dermody said. “But it’s crucial that the drilling industry respects local zoning ordinances and is regulated so that the environment and neighbors are protected.
“Today’s ruling was a huge victory because without local control, people living anywhere in Pennsylvania would be unable to prevent a drilling rig or compressor station from being built next to a school, day care center, playground or church,” he said.
“The court struck an important blow to stop a small group of multi-billion-dollar, out-of-state oil and natural gas conglomerates from riding roughshod over Pennsylvania residents, families and whole communities,” Rep. Dermody said.
State Judges Throw Out Drilling Law Zoning Provisions
Court: Gas Drilling Law Violates State Constitution
Court Voids Key Parts Of PA Gas Drilling Law
Drilling Law’s Zoning Restrictions Are Unconstitutional

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