Appeals Court Says Municipalities May Zone for Fracking

Posted by By at 31 July, at 08 : 19 AM Print

For years, Pennsylvania’s municipalities have held zoning power within their borders. As long as they provided a place within their borders for all legal land uses, they were allowed to tell developers of all stripe where to go.
A township in my part of the state became the focus of controversy a few years ago when a group of investors wanted to build a slot machine resort. Slots parlors are legal in the Commonwealth, but the township had no place designated for their establishment – so the developer was allowed to choose the spot.
Residential developers historically have arrived in unzoned municipalities and successfully argued, often in court, that they could build where they wanted because the township did not have a specified place for them. The same should, one might think, apply to Marcellus Shale natural gas developers.
Unfortunately, natural gas often exists where township leaders want to ban fracking – the pollutant-rich process of  retrieving the gas  from where plants and other carbon-based life forms died and were buried eons ago in highly compressed, ocean sediment, called shale.
Suddenly, corporate willingness to negotiate one township at a time became a call to the state legislature for “uniformity.” Developers such as Chesapeake Energy and Range Resources needed lots of wells, relatively close together, and did not need township leaders deciding whether a well would be allowed near a school, or a pipeline under homes.
The Republican-controlled legislature agreed. In February, they sent House Bill 1950 to Governor Corbett. With a flourish of the governor’s pen, HB 1950 became law as Act 13 of 2012, and municipalities were stripped of their zoning authority.
Several municipalities objected loudly, and seven from Washington, Allegheny and Bucks counties, went to court.
Last week, a seven-judge Commonwealth Court panel ruled, in a 4-3 decision, against the lawmakers and their campaign funders. (Also last week I reported that the shale gas industry had contributed more than $23 million to legislative candidates, for a roughly $1 trillion return on investment.)
Siding with the frackers, Judge P. Kevin Brobson said Act 13 “strikes a balance” in allowing harvesting of the state’s natural resources while establishing noise and setback restrictions.
Under Act 13, wells may be established within 500 feet of buildings and wells that supply drinking water, and within 300 feet of the waterways – except that fracking wells cannot be closer than 1,000 feet from streams that provide drinking water. Otherwise, shale gas developers are free to frack wherever they think there is gas.
For the state’s municipalities, Judge Dan Pelligrini said Act 13 “does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods, and makes irrational classifications.”
Gov. Corbett, whose 2010 gubernatorial campaign benefited from nearly $2 million in gas industry contributions, has vowed to appeal the Commonwealth Court decision to the state supreme court.
Pennsylvania residents have been told that too high taxes and too intrusive regulations would cause drillers to go elsewhere. Never mind that Pennsylvania sits on a source of gold too rich to abandon.
Never mind the leaking fracking wells that allow flammable methane gas to contaminate area water wells and create health problems for people who would drink or bathe in the previously clear and always indispensable liquid.
And never mind that municipalities in the northeastern part of the state already are seeing what happens when the wells are drilled, pipelines laid and all the oft-touted jobs moved elsewhere.
Those jobs are bound for western Pa. and eastern Ohio in their search for so-called “wet” gas. Like the eastern “dry” gas, it contains the same fuel for heating, electricity generation and vehicle fuel.
But “wet” gas includes components such as ethane, a component of plastic products, paint and other products, which a Shell Oil “cracker” plant proposed to be built near Pittsburgh may “crack” loose.
The apparent “problem” for the natural gas production industry is it has produced more gas than can be consumed, and lost money in the process. But it takes time to convert vehicles, plants and homes to burn natural gas instead of coal.
To speed the process, Democrat Senator Robert P. Casey Jr. has introduced a pair of bills in Congress that would provide grants to help states develop programs to use natural gas, provide rebates for companies, transportation providers, schools and others who purchase natural gas-fueled vehicles, and extend tax credits for natural gas fueling stations.
The bills will “encourage the use of natural gas as a transportation fuel and encourage private investment in natural gas vehicles and transportation infrastructure,” Casey said.
As the markets develop for the product, producers such as ExxonMobile, Sunoco and Chevron will open the gas spigot and begin to reap significant rewards.
And Pennsylvanians will be left with spider-like webs of road systems through the state’s forests, transmission lines under many homes, compressor stations wherever they are most efficient, and reminders of history book descriptions of coal harvesting that left deep scars in the earth a century ago, and dark-colored leachate taxpayers still are paying to staunch.
The legislature took away municipal zoning power in February, setting a precedent that could affect other industries. A Commonwealth Court gave it back late last week.
One could hope the state supreme court will see its way to allowing the state’s townships to keep the authority assigned them by the state constitution – to provide safe, healthy living conditions for their residents.

Photo by Adrian Kinloch

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This post was written by:
- who has written 169 posts for Rock The Capital
John Messeder is an award winning journalist with more than 35 years experience writing about education, environment and local government issues. He has lived in Maine, Florida, California and Alaska, and, by temporary turns, numerous places in between. John also is an accomplished photographer, and avid hiker, conservationist, oral history buff, and author of several books he has not yet got 'round to writing. He lives in Adams County, Pa., just over a hill from Gettysburg, with his wife and Golden Retriever. He may be contacted at john@JohnMesseder.com - Email jmesseder

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