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.

One day later, Gov. Corbett announced his Administration was appealing the ruling, saying--

"The provisions struck down by the Commonwealth Court are critically important for job creators who are employing more than 240,000 Pennsylvanians, for landowners seeking to exercise their property rights, and for local governments looking for guidance on how they may reasonably regulate oil and gas operations," Corbett said. "The provisions are also integral to the enhanced environmental standards and impact fee revenue portions of the Act. Indeed, there would be no Act without each of these crucial pieces."

"It is important to note that the provisions casually set aside by the court were the result of months of compromise and negotiation, with significant input and support from Pennsylvania's local government associations," Corbett said. "Both the County Commissioners Association of Pennsylvania and the Pennsylvania State Association of Township Supervisors, which represents 1,455 municipalities, urged passage of the law. This decision endangers the jobs of tens of thousands of Pennsylvanians and deprives citizens of their property rights.

"It is the General Assembly and Governor's prerogative to establish policy; it is the court's job to pass judgment on the constitutionality of this policy, not its merits. Act 13 clearly meets the constitutionality test, and I am confident the Supreme Court will adhere to its responsibility in a prompt and timely manner."

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 Group Reaction

The PA Environmental Council issued this statement on the court decision:

“Yesterday the Commonwealth Court of Pennsylvania issued a significant decision that reaffirmed the constitutional rights and responsibilities of local governments to enact rational and necessary controls on natural gas activities. The decision also invalidated provisions of Act 13 that inappropriately expanded waiver allowances to permit siting standards for unconventional gas wells.

“The Pennsylvania Environmental Council fully supports and commends the Commonwealth Court's decision. Responsible development of natural gas in Pennsylvania requires thorough consideration of our unique community and natural resources, with appropriate site-specific and regional protections in place as a result of that analysis.

“Responsible development of natural gas is important to the people and economy of Pennsylvania, but of equal importance are appropriate community, health, and environmental protections. The Court’s decision ensures that Pennsylvania’s Oil & Gas Act better meets those goals.”

LeeAnn Murray, Pennsylvania Staff Attorney for the Chesapeake Bay Foundation issued the following statement in response to court decision-- “The Commonwealth Court of Pennsylvania yesterday issued a significant win for the state’s natural resources and citizens by closing a loophole in the regulation of drilling for natural gas.

"Their decision ensures the environmental protections of Act 13 are carried out by striking a provision that allows the Department of Environmental Protection (DEP) to permit a waiver of established setbacks from water sources.

"Section 3215(b) of the Act establishes specific setbacks between the wellbore or disturbed area of the well and a water source.  The Court said that as written, the waiver provision does not provide adequate guidance to DEP on when setbacks should or could be waived.  Since the ultimate goal is to protect waterways, wetlands, and other water bodies, the waiver provision becomes ineffective in ensuring those protections remain in effect.

"While it is likely that this action will be appealed, CBF commends the Commonwealth Court of Pennsylvania in this recent decision. As a member of the Governor Corbett’s Marcellus Shale Commission, we advocated and will continue to advocate for environmental protections that protect our natural resources and the health of the citizens of the Commonwealth.”

The Delaware Riverkeeper Network, one of the plantiffs said, “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

Sen. John Yudichak (D-Luzerne), Minority Chair of the Senate Environmental Resources and Energy Committee, said, “I applaud the Commonwealth Court for their decision which declared significant portions of the Republican driven Marcellus Shale legislation, Act 13, unconstitutional. As the Democratic chairman of the Senate Environmental Resources and Energy Committee, I argued from day one that the oil and gas industry should not get a "free pass" when it comes to local zoning and reasonable environmental setback requirements.

“Today, the court agreed and voided Act 13 provisions that tried to supersede local zoning laws and empowered the DEP secretary to waive setback requirements for gas wells.  I want the oil and gas industry to prosper in Pennsylvania, but that prosperity must not come at the expense of our environment and the safety of local citizens."

NewsClips:

State Leaders Move Swiftly To Appeal Drilling Law Decision

Governor’s Office Appeals Ruling On Shale Drilling

State Appeals Marcellus Shale Law Ruling

State Judges Throw Out Drilling Law Zoning Provisions

Court Strikes Down Some Provisions Of New Drilling Law

State Court Knocks Out Key Piece Of Gas Drilling Law

Court: Gas Drilling Law Violates State Constitution

Court Voids Key Parts Of PA Gas Drilling Law

State Court Tosses Zoning Limits In Gas Law

Drilling Law’s Zoning Restrictions Are Unconstitutional

Local Officials Thrilled by Drilling Law Decision

Reaction To Drilling Law Court Decision

7/30/2012