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Judge halts law on shale oversight

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Thursday, April 12, 2012, 4:45 p.m.
 

A judge on Wednesday ordered a temporary halt to a portion of Pennsylvania's new Marcellus shale law that limits the power of municipalities to regulate the booming natural gas industry.

Commonwealth Court Senior Judge Keith Quigley issued the 120-day injunction after hearing arguments in Harrisburg. The eight-week-old law's local zoning provisions were scheduled to take effect on Saturday.

A group that includes South Fayette in Allegheny County and Peters, Cecil, Mt. Pleasant and Robinson in Washington County sought the injunction to give the municipalities time to argue their claims that the law, known as Act 13, unconstitutionally takes away local powers and should be overturned.

"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," Quigley wrote.

His order halts only any part of the law that might "pre-empt pre-existing local ordinances" but denies the rest of the municipalities' injunction request to stop the entire law from going into effect.

"What we were seeking was 100 percent what the court granted," said John Smith, the solicitor for Robinson and Cecil.

The Marcellus Shale Coalition issued a statement saying the natural gas industry group is "confident that the legal merits of this law -- aimed at ensuring the safe and responsible development of clean-burning American natural gas in the commonwealth -- will be recognized and upheld accordingly."

To issue an injunction, a judge must find that the request meets six standards, including that "there is likely success on the merits." Quigley wrote in a footnote to the order that he "is not convinced that petitioners' likelihood of success on the merits is high," but he ordered the injunction because five other factors were compelling.

Gov. Tom Corbett's office jumped on the footnote.

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

With regard to Quigley's comments about the wider lawsuit, Smith said he's not concerned because Quigley will not hear the case. Rather, a Commonwealth Court panel could hear it, or it could go to the state Supreme Court if Quigley's order is appealed, Smith said.

Among the objectionable provisions cited by the municipalities' March 29 lawsuit are requirements that drilling, waste pits and pipelines be allowed in every zoning district, including residential districts, as long as certain buffers are observed.

Senior Deputy Attorney General Howard Hopkirk argued that the state created the municipal planning code, and municipalities have no right or standing to complain about perceived harm to its residents if the state pre-empts parts of it.

Nils Frederiksen, a spokesman for the Attorney's General's office, declined to comment.

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