Parts of Pa. law favored by frackers overturned

Introduction

Pennsylvania’s Commonwealth Court overturned parts of the state’s controversial Act 13 on Thursday, returning zoning authority over natural gas drilling to the municipalities and townships that had contested the five-month-old law.

The Center for Public Integrity reported last month that local governments had banded together to challenge Act 13, a state law that overrides municipal zoning jurisdiction. Under the law, companies that use a drilling technique called hydraulic fracturing – commonly known as fracking – to tap gas deposits in shale would have been free to drill even in areas where local officials had voted against wells.

The court declared the act’s zoning sections “unconstitutional, null and void,” throwing out parts of the law that allowed the state to supersede local zoning authority and waive well-spacing requirements.

Dan Pelligrini, the court’s president judge, wrote on behalf of the majority that Act 13 “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.”

Governor Tom Corbett, who supported and signed the law in February, announced Friday that his office would appeal the ruling to the Pennsylvania Supreme Court.

“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 in a statement. “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.”

In their argument to the court, lawyers for the Commonwealth pointed to the uniformity of statewide drilling standards as justification for overriding local zoning control. The court was not convinced.

“If the Commonwealth-proffered reasons are sufficient, then the Legislature could make similar findings requiring coal portals, tipples, washing plants, limestone and coal strip mines, steel mills, industrial chicken farms, rendering plants and firework plants in residential zones for a variety of police power reasons advancing those interests in their development,” Thursday’s opinion says. “It would allow the proverbial ‘pig in the parlor instead of the barnyard.’”

State Rep. Jesse White (D-Washington), a longtime opponent of unrestricted gas drilling and the disproportionate influence of energy lobbyists — who spent $1.3 million to support Act 13 — called the decision a “major victory.”

“Hopefully we can now stop the bullying and the buying-of-influence and truly work together to develop a responsible approach that will allow development of Marcellus Shale while creating a culture of true accountability and responsibility,” White said in a statement. “Today’s decision reaffirms that our constitutional protections are not for sale.”

The Marcellus Shale Coalition, an industry trade group that spent $978,766 on lobbying from January through March this year, released its own response to the ruling. Kathryn Z. Klaber, president of the coalition, said in a statement that the law was premised on providing “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,” the statement reads.

Other sections of Act 13 remain intact, including a new “impact fee” for drillers of gas wells. The drillers must submit payments to the state to offset any negative impacts of fracking. Critics say, however, that the fees are inadequate and there are many restrictions on how they can be used.