Pa. Court Upsets Marcellus Shale Zoning Law
27 July 2012
By Laura Olson and Erich Schwartzel
HARRISBURG -- A dispute over Pennsylvania's attempt to establish
statewide zoning for Marcellus Shale drilling likely is headed to
the state's top court, after an appellate panel on Thursday
overturned the new rules.
Judges on the Commonwealth Court ruled that Pennsylvania cannot
require municipalities to allow drilling in areas where it would
conflict with their zoning rules, siding with several towns
challenging the five-month-old law.
That law enacted a sweeping set of changes for how the gas
drilling industry operates within Pennsylvania. It created a
per-well annual fee, updated dozens of regulations, and, most
controversially, dictated which aspects of drilling can and cannot
by regulated locally.
The decision grants a reprieve to townships that had about two
weeks left to overhaul their ordinances before an injunction
delaying that section of the new law was to expire.
In fact, Cranberry planned to hold a hearing Thursday on its
"It'll make that portion of the agenda very short," said Cranberry
manager Jerry Andree after the ruling.
The township's ordinance, adopted in 2010 "in compliance with the
then-state law," restricted drilling operations to areas around
U.S. Route 19 and other industrial zones, Mr. Andree said. But Act
13 "basically threw our whole ordinance out," he said. "It was a
That was the message in the challenge filed by municipal
officials, who said the broad requirements for where gas wells and
compressor stations must be allowed would inhibit their ability to
protect the health and safety of residents.
The majority opinion, written by Judge Dan Pellegrini, agreed with
the local officials' concerns. He wrote that the required rule
changes would alter the character of neighborhoods and make the
existing municipal zoning plans irrational.
"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," the opinion states.
Three other judges joined Judge Pellegrini in the majority
Due to a recusal by Judge Mary Hannah Leavitt, who was not on the
panel considering the case's merits, there was a tie vote on
whether the opinion should be "published," a classification
related to whether the opinion can be cited in future cases.
Along with declaring the zoning section null and void, a separate
provision on waiving setback requirements for gas wells also was
The rest of the law, including the impact fee, remains in effect.
A dissent from Judges Kevin Brobson, Robert Simpson and Anne Covey
said they agreed with the decision to halt waivers on setback
requirements, but strongly opposed the majority's argument on
They argued that the statute's 500-foot setback for gas wells in
residential areas -- and other conditions required of compressor
stations and processing facilities related to noise and location
-- effectively balance the desire to develop resources against the
goals of land-use planning.
"Oil and gas deposits can exist in a residential district just as
easily as they might exist in an industrial district," Judge
Brobson wrote. "What a local municipality allows, through its
comprehensive plan, to be built above ground does not negate the
existence and value of what lies beneath."
The office of Gov. Tom Corbett, who strongly supported the
legislation, issued a statement Thursday afternoon saying the
governor was disappointed with the decision and would likely
"We will vigorously defend this law, which better protects the
environment, provides revenue to local communities and regulatory
certainty to both landowners and job creators," the statement
Due to the legal charges against Supreme Court Justice Joan Orie
Melvin, the state's top court currently is divided between three
Democrats and three Republicans, clouding the forecasts for what
could happen on appeal.
Meanwhile, officials in the municipalities that filed the lawsuit
-- including the southwestern towns of Cecil, Peters, South
Fayette, Mount Pleasant and Robinson -- were celebrating the
"Certainly today's ruling preserves our right to have reasonable
zoning in place," said South Fayette board president Deron
Gabriel. "It protects our schools from industrial activities."
Drew Crompton, a Senate Republican staffer who helped write the
law, said the opinion confirms that the state has the right to
regulate zoning, though he disagreed with the judges' argument
against how the state exercised that power.
"Either these local municipalities are creatures of the state and
we can tell them what to do, or we cannot," Mr. Crompton said.
Industry officials, who had advocated for more zoning uniformity
for years, disagreed with the ruling, but shied away from saying
how it might affect their level of activity in Pennsylvania.
"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," said
Marcellus Shale Coalition president Kathryn Klaber in a statement,
adding that the issue "must be resolved if the Commonwealth is to
remain a leader in responsible American natural gas development."
Downtown-based driller EQT Corp. said it would wait for a final
decision from the Supreme Court before making changes to its
drilling or pipeline plans.
"We think it's a bit premature to try and figure out what, if any,
impact there would be," spokeswoman Natalie Cox said. "This isn't
final yet, and until it's final we're not speculating."
Harrisburg Bureau Chief Laura Olson: email@example.com or
717-787-4254. Erich Schwartzel: firstname.lastname@example.org or