Wait a Fracking Minute!

Pennsylvania Act 13 rules superseding local zoning rules were overturned in a lower court decision.  Act 13 was adopted by the Pennsylvania Legislature five months ago and signed into law by Governor Corbett.  It was designed to create a common set of rules to govern drilling and hydraulic fracturing across the Commonwealth and avoid the patchwork quick of township by township rules.  Drillers interested in developing the oil and gas potential in the Marcellus shale lobbied hard for the law and the rules adopted after its passage.

But on July 26, 2012 a Commonwealth Court ruled that Act 13 cannot be used to supersede the township zoning laws to permit drilling in areas where the local zoning rules preclude it.  This issue has been festering as towns worried that in the enthusiasm over the potential for energy production pots of gold oil and gas well will appear in inappropriate locations spoiling neighborhoods without the town having any say in the matter.

Marcellus Shale Coalition president Kathryn Klaber told reporters,  “The premise for the General Assembly’s action earlier this year [ in adopting Act 13] 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.”

Act 13 included a provision that gave the towns more time to modify their zoning rules to address these issues but that time was running out and getting agreement on new rules has not been easy. Municipal officials also complained that Act 13’s broad requirements for where gas wells and compressor stations must be allowed had the practical effect of intruding on the town’s ability to protect health and safety.  The Commonwealth Court agreed with the towns finding that the Act 13 rules changes could change the very character of neighborhoods and undermined the very nature of local zoning.

“If a municipality cannot constitutionally include allowing oil and gas operations, it is no more constitutional just because the Commonwealth requires that it be done,” wrote Commonwealth Court Judge Dan Pelligrini in the opinion of the majority.

But proponents of Act 13 including Governor Corbett have reason to believe they might ultimately prevail on appeal.  Because one judge on the court recused herself there was a tie vote among the judges about whether to publish the opinion on setting aside the zoning rules change provisions of Act 13.  Under Pennsylvania law this apparently means that the court’s decision cannot be used a precedent in other cases.  The court upheld the rest of Act 13 so an appeal to a higher court now seems likely on the zoning question.