From the Derrick: The decision was a defeat for Gov. Tom Corbett and the natural gas industry, which had long sought the limitations, and the governor’s office said an appeal to the state Supreme Court is likely.
The state Commonwealth Court ruled 4-3 in a decision released Thursday that the limitations in the so-called Act 13 violated the state constitution. The opinion’s author, President Judge Dan Pellegrini, said the provisions upended the municipal zoning rules that had previously been followed by other property owners, unfairly exposing them to harm.
Seven municipalities had sued over the sweeping, 5-month-old law, saying it unconstitutionally takes away the power to control property from towns and landowners for the benefit of the oil and gas industry.
“This is a wonderful victory for local government, a recognition that local municipal officials have a valid interest in protecting the property of their citizens,” said Jordan Yeager, one of the lawyers who argued on behalf of the municipalities. “Act 13 took that away and the court said that the governor and the Legislature had gone too far.”
Among the most objectionable provisions cited by the towns were requirements that drilling, waste pits and pipelines be allowed in every zoning district, including residential districts, as long as certain buffers are observed.
The natural gas industry, which has invested billions of dollars in Pennsylvania beginning in 2008 to exploit the Marcellus Shale formation, the nation’s largest-known natural gas reservoir, had sought even stronger limitations than the ones in the new law.
The companies were not used to navigating such local rules in other drilling states, and some companies complained that municipalities, mostly in southwestern Pennsylvania, had tried to use zoning rules to effectively ban drilling.
Corbett, viewed as an industry ally, had warned that Pennsylvania would lose drilling rigs if its rules were less industry-friendly than other states’ and also pressed for stronger limitations than the ones the Legislature ultimately approved in the law he signed Feb. 14.
The zoning provisions were part of a bill written by Republicans, who control the state Legislature, that also imposes a new fee on drilling. The provisions were complicated enough that they were the last issues settled before the final draft was unveiled and passed by both chambers within the space of a couple days.
“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,” Corbett’s office said in a statement.
The state Supreme Court has three Republicans and three Democrats, and cannot overturn a lower court decision on a 3-3 tie vote.
In the majority opinion, Pellegrini wrote that the public’s interest in zoning is in developing and using land consistently with local demographic and environmental concerns, but the law required zoning changes to the rules under which businesses and homeowners had already made investment decision.
“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 fireworks plants in residential zones for a variety of police powers advancing those interests in their development,” Pellegrini wrote. “It would allow the proverbial ‘pig in the parlor instead of the barnyard.’”
Pellegrini, a Democrat, was joined by the other Democrat on the panel, Bernard McGinley, and two Republicans, Patricia McCullough and Bonnie Brigance Leadbetter. Three Republican judges dissented.
“The law promotes the health, safety, and welfare of all Pennsylvanians by establishing zoning guidance to local municipalities that ensures the uniform and optimal development of oil and gas resources in this commonwealth,” Judge Kevin Brobson wrote for the minority.