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Commonwealth Court strikes some provisions of state's gas drilling law

| Thursday, July 26, 2012, 11:26 a.m.
This Marcellus shale drilling site was established some time ago in Cecil Township, Washington County. New development is expected to slow as drillers wait for pipelines to be installed and prices to increase. File photo
Sidney Davis | Tribune-Review
This Marcellus shale drilling site was established some time ago in Cecil Township, Washington County. New development is expected to slow as drillers wait for pipelines to be installed and prices to increase. File photo Sidney Davis | Tribune-Review

Parts of the state's new oil and gas law unconstitutionally limit local governments' ability to keep gas drilling rigs and waste pits away from homes, schools and parks, a divided state appeals court ruled on Thursday in a decision the Corbett administration likely will appeal.

A 4-3 majority of the Commonwealth Court judges who heard the case sided with leaders from Pittsburgh-area suburbs who challenged the legality of Act 13. The court struck down portions of the law, which established fees and uniform land-use rules to regulate the burgeoning Marcellus shale gas. The legal challenge focused on the issue of local control.

“This doesn't mandate that drilling isn't going to happen within their (townships') borders. It just puts back the balance of what's existed since the Marcellus (drilling) started,” said John M. Smith, the plaintiffs' lead attorney and solicitor for Cecil and Robinson in Washington County.

South Fayette, Mt. Pleasant and Peters also challenged the law.

“If you want to build a shed in our townships, you're probably going to need a permit from us. And we just wanted (drillers) to be treated like everybody else,” Smith said.

The decision was a defeat for the gas industry and Republican Gov. Tom Corbett, whose office said it likely would appeal the ruling to the state Supreme Court.

“Act 13 is clearly constitutional and received significant input and ultimate support from Pennsylvania's local government associations and their legal counsel,” said Corbett spokesman Eric Shirk. “We will vigorously defend this law.”

The court agreed with four of 12 complaints, including the lead claim that state lawmakers violated the state and federal constitutions. The judges dismissed lesser claims that became irrelevant once they ruled to uphold local land-use control, several plaintiffs said. Judges dismissed separate challenges to eminent domain provisions for pipelines and to laws that govern the information drillers give to doctors, saying the plaintiffs did not have standing.

The new law requires “municipalities to violate their comprehensive plans for growth and development,” President Judge Dan Pellegrini, a Democrat, wrote for the majority. It “violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications” by allowing industrial work under industrial standards in residential areas.

“This is a wonderful victory for local government, a recognition that local municipal officials have a valid interest in protecting the property of their citizens,” said Jordan Yeager, one of the lawyers who argued on behalf of the municipalities. “Act 13 took that away, and the court said that the governor and the Legislature had gone too far.”

Lawyers for several defendants did not return requests for comment or referred questions to the Marcellus Shale Coalition, a Cecil-based drilling industry group. The state needs to standardize rules, the group's leader wrote in an emailed statement.

“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,” coalition President Kathryn Z. Klaber said. “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.”

Pennsylvania municipalities cannot oversee any environmental issues at well sites — that's the state's job — but have long had control over land-use decisions. Many communities were moving to tighten those rules, requiring drillers to meet more conditions on noise, light and traffic at work sites before they're able to get permission to drill, especially in residential areas.

Supporters in state government pushed to limit local control and standardize the rules for drillers in all 2,000 municipalities statewide. Lawmakers passed Act 13 in February. It included some restrictions, including a prohibition on drill pads within 300 feet of homes without a waiver from residents.

Those restrictions showed the state tried to balance local health and safety needs with the right for gas owners and drillers to do business, Judge P. Kevin Brobson wrote in an all-Republican minority opinion.

The rule “does not, as the majority suggests, eviscerate local land use planning,” he wrote. “It does not give carte blanche to the oil and gas industry to ignore local zoning ordinances and engage in oil and gas operations anywhere it wishes.”

Pellegrini was joined by the other Democrat on the panel, Bernard McGinley, and two Republicans, Patricia McCullough and Bonnie Brigance Leadbetter. Judges Robert Simpson and Anne E. Covey joined Brobson in the minority. They dissented on only three counts, all related to land-use and local control.

“I'm very pleased with the decision,” said David Ball, a Peters councilman who is among the plaintiffs. “We won the important parts of the case.”

The judges agreed that one new rule gave too much power to the state Department of Environmental Protection. The ruling means DEP will not be allowed to waive setbacks for drilling in some environmentally sensitive areas.

The department referred comment to Corbett's office.

Timothy Puko is a staff writer for Trib Total Media. He can be reached at 412-320-7991 or Staff writer Jeremy Boren and The Associated Press contributed to this report.

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