Fight possible over Pa. drilling rules on zoning
Sunday, March 4, 2012
HARRISBURG, Pa. (AP) — In the final weeks before the Legislature approved a sweeping Marcellus Shale law, Brian Coppola met with his area's lawmakers to warn against stripping municipalities of their zoning power to influence the location of drilling rigs, wastewater pits and compressor stations.
The township official even met with Lt. Gov. Jim Cawley, Gov. Tom Corbett's point man on Marcellus Shale issues — but he couldn't change enough minds.
"Municipalities right now are in panic mode because nobody believed they would do something like this," said Coppola, chairman of the Robinson Township supervisors in Washington County, about 20 miles west of Pittsburgh, where drilling is brisk and plentiful.
The law's authors say Coppola's concerns are extreme and unfounded, but his fears were echoed by Democrats during vigorous debate on the Republican-penned bill: Municipalities can no longer adequately protect homes or businesses, and possibly even schools or parks, from nearby drilling activity that could damage a community's quality of life and property values.
Coppola, a Republican, and others warn that areas outside the Marcellus Shale formation — such as southeastern Pennsylvania's sprawling suburbs — will also be affected since the law limits municipal authority over the industry's "downstream" compressor stations and pipelines that bring the gas to consumers.
The state has forced its way into municipal land planning before on behalf of a heavily regulated resources industry — timbering, for example. But several land-use lawyers said the new law seemed unprecedented for its detail in limiting what a municipality can require when it comes to exploration of the Marcellus Shale, considered the nation's largest-known natural gas formation.
The provisions may spawn a new wave of court cases in Pennsylvania, just as similar battles are being waged in New York courts.
Corbett, a Republican, insisted when he signed the law Feb. 14 that it provides "increased uniformity and fairness of local regulations while preserving local government's traditional zoning authority."
That's not true, critics say.
"They're putting out Kool-Aid that says we've preserved the rights of municipalities to zone," said David Ball, a councilman in Peters Township, next to Robinson Township. "They took it all away."
The Pennsylvania State Association of Township Supervisors endorsed the bill. Its deputy director, Elam Herr, said municipalities lost some zoning authority, not all, and that the organization's efforts to negotiate a better deal were hurt by ordinances that appeared to violate state law.
Jackie Root, president of the Pennsylvania chapter of the National Association of Royalty Owners, which advocates for those who want to lease their below-ground gas rights, said she believes the law was a fair compromise.
"We're talking about local governments. You've got three township supervisors that change with every election sometimes, and the whim of the current elected officials could change how development occurs if we don't have some continuity across the state," said Root, who lives in a heavily drilled area of northern Tioga County, near the New York border.
After the industry began descending on the Marcellus Shale in earnest in 2008, state Supreme Court decisions expanded the legal gray area surrounding the extent of municipal authority over the operation and location of oil and gas wells, critics of the decisions say. Some companies complained that municipalities, mostly in southwestern Pennsylvania, had tried to use zoning rules to unreasonably limit drilling.
As a result, many in the industry made it a top priority to secure a law that eliminated any municipal authority over how drilling companies could operate. Corbett took office in 2011 and backed the industry, believing that a 1984 state law had intended to do that anyway.
Colorado and Ohio have recently passed such laws. In New York, where state officials essentially put Marcellus Shale drilling on hold, state courts are currently deciding whether local governments have the right to ban the industry from operating within their borders.
Cities in Texas and Oklahoma have broad powers to regulate oil and gas drilling, although most wells are drilled in unincorporated land in those states where little to no zoning applies.
In Pennsylvania, every inch is incorporated into a municipality, although many municipalities in rural areas have not written zoning ordinances.
After months of closed-door talks, top Republican lawmakers hammered out what they viewed as a compromise between municipal associations and industry representatives.
The provisions are in a 174-page bill that sets the first major levies on the Marcellus Shale industry in Pennsylvania — allowing counties to slap an impact fee on the booming industry — and toughens some environmental and safety laws.
A legal challenge is being explored by lawyers for Robinson Township and several other towns in southwestern Pennsylvania, where well drilling, pits, pipelines, gas processing plants and compressor stations are blending with communities tucked into the hilly steel and coal country.
The state imposes environmental standards on natural gas drilling and production, such as requiring pits to be lined and wells to be properly cemented. But the activities are sources of air pollution, and processing plants and compressor stations in particular can be large, noisy, engine-powered complexes.
Other towns are paying close attention: Coppola said he recently ushered a group of municipal officials from Bucks County around his township.
The local zoning provisions take effect in mid-April and give municipalities 120 days to comply. Scores of them must figure out if their ordinances are legal and, if not, get rid of them or prepare to potentially defend them in court. About 125 municipalities had at least one oil and gas ordinance in effect, according to the industry group, the Marcellus Shale Coalition.
"There will probably be a few that will be determined to challenge this in court," said Steve Saunders, a Scranton lawyer who advises county and municipal governments on oil and gas and environmental issues. "And certainly one way to challenge it is not to do anything and let the oil and gas company come in and sue you."
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