In Pennsylvania, if a local government decides to open up Marcellus shale drilling throughout a community, even a residential area, it might not be challenged in court because of a recent, precedent-setting case in Allegheny Township.
The courts didn’t buy the role of local governments as environmental stewards when it comes to zoning decisions, which was a key argument made by residents challenging the township’s decision to open all zoning areas to fracking.
While zoning is considered by many to be a dry, boring issue tended to by developers and wonky public officials, it can determine whether a Marcellus shale well pad will be your new next-door neighbor.
The case will apply to similar communities — that is, rural municipalities, not cities.
Several Allegheny Township residents who lived in an area zoned R-2 agricultural/residential sued the township, its zoning hearing board, CNX Gas Co. and other township residents when a Marcellus shale gas well pad was approved in 2014 within 1,200 feet of their homes.
“The bottom line is: ‘residential’ is no longer ‘residential,’” said Christopher Papa of New Castle, attorney for the residents who sued.
The gas well pad is on the property of a neighboring farm owned by John and Anne Slike and Northmoreland Farms LP, who were among the defendants in the case.
The township asserted that, although the township supervisors opened up all of the zoning districts to unconventional gas drilling — fracking — the actual amount of land available for fracking was much smaller.
The state’s rule mandates that well pads must be at least 500 feet from homes. When you add in topography, adjacent land uses and buffers such as nearby water wells, the possibility of unconventional oil and gas development is eliminated on more than 50% of the township’s land mass, according to Bernie Matthews, Allegheny Township solicitor.
The case went all the way to the state Supreme Court, which declined to hear it. That effectively upheld a 5-2 ruling last year by Commonwealth Court that denied an appeal by the Allegheny Township property owners who tried to overturn multiple rulings that allow unconventional gas drilling in all of the township’s zoning districts.
No reason was given for the state Supreme Court’s decision not to review the case.
The current owner of the Allegheny Township well pad, Huntley & Huntley Energy Exploration, which bought the site from CNX in 2017, was pleased with the state Supreme Court decision to deny hearing the Frederick case.
“Allegheny Township’s oil and gas development ordinance is very robust,” said Kimberly Price, Huntley & Huntley’s communications director, “more so than any other use under its zoning ordinance and was thoughtfully developed for the community’s needs.”
The court’s decision is a win for HHEX’s landowners, Price said. The company plans to now move forward with their well pad development plans in the township.
Case’s journey to top court
Allegheny Township property owners asked the state Supreme Court to review the Commonwealth Court ruling that they believe infringed on their “fundamental and constitutionally protected property and environmental rights.”
The appeal to the Supreme Court was filed Nov. 26 by Willowbrook Road residents Dolores Frederick, Patricia Hagaman and Beverly Taylor.
They argued that hydraulic fracturing, or fracking, and horizontal drilling used to tap deep gas reserves constitute an industrial use that’s incompatible with other permitted uses in Allegheny Township’s residential-agricultural zone — namely houses, farms, schools and churches.
The Commonwealth Court ruling concluded that the residents failed to demonstrate that a lower court erred when it agreed with the township’s zoning board’s decision to allow fracking in all zones.
The Commonwealth Court ruling stated: “It’s the Commonwealth’s duty to regulate ‘how’ gas drilling is conducted to protect Pennsylvania’s water and air from degradation. By contrast, local governments regulate ‘where’ oil and gas operations will take place with zoning ordinances.”
For Allegheny Township, the legal victory was reaffirming for what the township’s leaders decided was best for its residents.
“Allegheny Township is a rural community with large tracts of land, and some residents were able to save their farms by virtue of oil and gas leases,” Matthews said.
“If we have property owners with large farms and valuable gas rights who want to send kids to college, to save their family farms and to support their families and to do this, and comply with environmental laws enacted by the state, they should be permitted to do so,” he said.
Papa saw the case differently.
“To me, this just drips of power to the persons who have 300 acres and not so much power to the lady on the small parcel of land happy to be in the country to get peace and quiet,” he said.
Additionally, the case illustrated the power of local government, Papa said.
“It institutes a mob rule into local government,” he said. “If you can get the people elected to supervisors and zoning boards, you can do what you want.”
It’s a balancing act for public officials to decide where to allow unconventional well drilling, according to Stephen Yakopec Jr., a longtime municipal solicitor.
By state law, local governments must permit the extraction of minerals, crude oil and natural gas.
“Residents elect people to make these decisions, and some people are unhappy with the decisions they made,” Yakopec said. “Passions run high on both sides of the issue, and the elected officials are stuck in the middle trying to balance the interests and follow the will of the majority.”
But this process might be lost on a majority of the public when zoning issues are handled, said Michael J. Witherel, another longtime municipal solicitor.
Given competing interests and the power of local governments, it’s up to the residents to elect officials who do what they want, he said.
“The local elections are the most important, and they are ignored,” Witherel said. “The Allegheny Township case is a perfect (example).”
Competing interests are common, especially when it comes to shale drilling.
“Some people are worried about the quality of their water, and other people want to become millionaires,” he said.