The Faces of 90.5 WESA
Fri March 30, 2012
Towns Sue Pennsylvania Over Marcellus Shale Law
A group of seven municipalities, including 5 in southwestern Pennsylvania, sued the state Thursday over its new law regulating the rapid growth of natural gas exploration, saying, among other things, that it unconstitutionally takes away the power to control property from towns and landowners for the benefit of the oil and gas industry.
The approximately 120-page lawsuit was filed in state Commonwealth Court. Plaintiffs include townships in southwestern Pennsylvania — Robinson, Peters, Cecil and Mount Pleasant in Washington County, and South Fayette in Allegheny County — where exploration of the Marcellus Shale is under way, and Nockamixon Township and Yardley Borough in southeastern Pennsylvania's Bucks County where officials are worried about their inability to control future exploration of different natural gas formations.
Among the objectionable provisions cited by the 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.
"As municipalities can expect hundreds of wells, numerous impoundments, miles of pipelines, several compressor and processing plants, all within (their) borders, they will be left to plan around rather than plan for orderly growth," the lawsuit said.
The industry began descending on Pennsylvania in 2008 in earnest to tap into the Marcellus Shale, a natural gas formation deep underground that is considered the nation's largest-known reservoir.
But company officials found what they viewed as a gray area surrounding the extent of municipal authority over the operation and location of oil and gas wells, and some complained that municipalities had tried to use zoning rules to unreasonably limit drilling.
In addition to allowing counties to impose a drilling fee on their local gas wells, the sweeping, six-week-old law grants the industry the predictable rules it had sought, the lawsuit said.
"However, it did so at the expense of the predictability afforded to … the citizens of Pennsylvania whose health, safety and welfare, community development objectives, zoning districts and concerns regarding property values were pushed aside to elevate the interests of out-of-state oil and gas companies and the owners of hydrocarbons underlying each property, who are frequently not the surface owners," the lawsuit said.
Governor Tom Corbett, a Republican, took office in 2011 and backed the industry's objectives, believing that a 1984 state law had intended to outlaw municipal regulation of oil and gas operations anyway.
Several land-use lawyers have said the new law seemed unprecedented for its detail in limiting what a municipality can require when it comes to exploration of the Marcellus Shale. However, none said they viewed it as an unconstitutional encroachment into municipal zoning.
The final law was negotiated in private by Corbett's fellow Republicans who control the state Legislature. Only seven Democrats voted for it, while 13 Republicans voted against it.
A spokesman for Corbett, Eric Shirk, said Thursday the governor's office hadn't yet seen the lawsuit, but he pointed out that negotiators worked closely with associations that represent local governments, including the Pennsylvania State Association of Township Supervisors, and said the administration is confident the law will withstand judicial scrutiny.
When he signed the bill, Corbett said it provides "increased uniformity and fairness of local regulations while preserving local government's traditional zoning authority."
Jackie Root, president of the Pennsylvania chapter of the National Association of Royalty Owners, which advocates for those who want to lease their below-ground gas rights, has said she believes the law was a fair compromise.
The plaintiffs want an injunction stopping the law from taking effect and, ultimately, for it to be struck down.
The local zoning provisions take effect in mid-April and give municipalities 120 days to comply. Scores of them must figure out if their ordinances are legal and, if not, get rid of them or prepare to potentially defend them in court. About 125 municipalities had at least one oil and gas ordinance in effect, according to the Marcellus Shale Coalition, an industry group.
The lawsuit also says the law violates the separation of powers doctrine, is unconstitutionally vague in portions that regulate municipal zoning, and violates various procedural rules on legislation laid down by the state constitution.
Copyright 2012 The Associated Press.