Local leaders sue for right to control location of gas wells

Introduction

When Pennsylvania passed a state law that stripped local authority over where potentially hazardous natural gas wells could be drilled, cities and townships decided to take matters into their own hands.

Seven municipalities from across the state have filed a lawsuit in Pennsylvania’s Commonwealth Court challenging the constitutionality of Act 13, a law passed in February that charges an impact fee for natural gas wells but also overrides local governments’ zoning authority. The case was argued on June 6 and is currently under review.

At first glance, the impact fee of up to $50,000 per well seems to put wealth from drilling on the Marcellus Shale into citizens’ hands. Detractors of Act 13 say, however, that it is a Trojan Horse of unwelcome stipulations.

Thanks to the law, doctors can find out what chemicals are used in fracking, the controversial drilling technique that environmentalists say turns their water taps into flamethrowers and poisons the air. But they are bound by a confidentiality clause that prevents them from telling their patients what those chemicals are. Local counties get the impact fee, but it comes with strict regulations on how it can be spent. They can use it to provide low-income housing for gas workers, for example, but not to conduct air quality testing.

Most importantly, municipal zoning jurisdiction has been overruled. Now gas companies can drill wherever they like, even if local councils vote to keep the wells out of their jurisdictions.

“It gives industry the right to tell us how we’re going to plan our townships rather than the other way around,” said David M. Ball, a petitioner in the lawsuit and councilman of Peters Township, Washington County.

Sen. Tim Solobay, D-Canonsburg, oversees three of the seven municipalities that filed the Act 13 lawsuit. Local activists and council members began campaigning against the act back when it was still House Bill 1950. They made phone calls, sent letters, protested and met with legislators in Harrisburg, but to no avail.

“The gas industry is very strong,” said Jan Milburn, president of the Westmoreland Marcellus Citizens Group. “It’s all about money. It’s not really about what constituents want.”

Solobay said he’s raised “well over $2 million to $3 million of campaign contributions” in the last 15 years and energy companies make up less than 5 percent of the total. “So I can’t imagine where people would think they’re a major influence on decisions I make,” he said.

But natural gas drilling has only become prominent in Pennsylvania in the past few years, since the development of fracking suddenly made the Marcellus Shale a lucrative resource.

According to the National Institute on Money in State Politics, Solobay raised just $500 from the oil and gas industry in his 2008 campaign. In the 2010 election, the total jumped to $16,750. The following year, he voted in favor of Act 13.

Sen. John Pippy, a Republican who also represents several of the petitioning townships in Washington and Allegheny County, received $700 from oil and gas companies in 2008. In 2010, that amount jumped to $3,650 despite the fact he was not up for re-election that year. He voted in favor of Act 13.

Rep. Jesse White, a Democrat, serves several of the same areas as Solobay, including Mount Pleasant Township, one of the petitioners in the lawsuit and home of the first Marcellus Shale drill site in Pennsylvania. White is a former supervisor of Cecil Township, another petitioner that plays host to heavy natural gas activity. He opposes Act 13 because of its disregard for local accountability.

“By taking away all the zoning regulations, the municipality — and in extension, the people — don’t even know where all this stuff is,” White said. “It’s a very bad thing in terms of transparency.”

So far this year, the oil and gas industry has contributed $250 to White’s campaign and $5,250 to Solobay’s, according to the National Institute on Money in State Politics.

Supporters of Act 13 say it promotes industrial development, bringing jobs and economic opportunity to Pennsylvania. The Marcellus Shale Coalition, an industry trade group, says the legislation will provide the industry “greater certainty to operate across Pennsylvania” while incorporating a “broad-based group of interests across industry, government, and the conservation community.”

Ball said Republican Gov. Tom Corbett, a favorite of the oil and gas industry, had been “very adamantly behind pushing this bill. They put a lot of pressure on Republican legislators to go with the game plan.”

But Solobay is a Democrat. According to Ball, however, his headquarters sits “right in the middle of the drilling area.” Range Resources, Chesapeake Energy, and EQT Corp. have all given to his campaigns, according to the Pennsylvania Department of State.

Solobay said that energy companies wouldn’t “come in and put a six-, seven- or eight-acre development right beside a school or residential area” because of potential bad PR.

“They just want to do business. They don’t want to cause headaches, grief and aggravation,” he said, “I think they’ll work with communities, even those that may have had stricter policies than what ended up in Act 13.”

In 2010, the oil and gas industry contributed $499,025 to Pennsylvania’s Senate and House candidates. In 2012, state records report $175,615 in contributions so far.

Brian Coppola, one of the lead petitioners trying to overturn the law, acting both individually and as supervisor of Robinson Township, said the industry spent millions of dollars to get Act 13 passed.

“I heard that in court from the industry attorney. It’s their act,” Coppola said.

The Marcellus Shale Coalition spent $978,766 on lobbying from January through March this year, according to state records. Other top lobbying spenders included gas drillers Range Resources at $133,766, Chesapeake Appalachia LLC at $111,099, Shell Oil at $102,400, and Spectra Energy Transmission at $48,088.

Many of the municipalities are open to natural gas drilling, they just want local authority over where the industry operates.

“The entire board of supervisors is conservative Republicans, and we’re pro-drilling,” Coppola said. “But we’re mindful of the fact that we need to do it right.”

Ball said Peters Township councilmen had spent two years developing a mineral extraction ordinance, holding public hearings on multiple drafts in a “long and involved process.” They researched what was involved in the drilling, what to be aware of and how to create a policy that was satisfactory to all parties. Finally, they issued an ordinance that they felt “protected the township to the maximum extent.”

“The people that own gas rights were able to take advantage of their property as well,” Ball said. “It was a very good ordinance, the best we could probably do.”

Act 13 would override all the townships’ efforts.

Opponents of the impact fee also fear that this violation of home rule could easily extend to other industries.

“What happens when the next industry comes down the line, like the homebuilders’ industry?” Ball asked. “Pretty soon, what does zoning even mean?”

Coppola said he receives “hundreds and hundreds of letters” every day from townships and boroughs in support of the lawsuit.

Last month, the Pennsylvania State Association of Township Supervisors, which represents 1,455 townships comprising 95 percent of Pennsylvania’s land area, passed two resolutions stating opposition to “any legislation that would remove, reduce or inhibit local government authority” or “pre-empt the existing authority of townships to regulate land use.”

“I’ve personally not heard of one municipality that has said they support the zoning provisions of Act 13,” Ball said.

Whether the Commonwealth Court affirms Act 13 or not, White, Coppola, Milburn and Ball agree that the law will most likely be appealed to the Pennsylvania Supreme Court.

“Act 13 eventually is going to be undone,” Coppola said. “It strips away too many rights of individuals. People are just going to go crazy.”