Saying they were locked in a “no-win situation” by the state’s Act 13 and its wide-ranging zoning mandates involving the Marcellus Shale gas industry, local officials this week expressed confidence that a recent Commonwealth Court decision to overturn part of the law as unconstitutional will be upheld in an appeal to the state Supreme Court.
“We’re confident that the Commonwealth Court decision was very well reasoned and supported by case law,” said John Smith, a solicitor who represented Cecil and Robinson, Washington County, in the multi-municipality lawsuit challenging the statewide zoning provisions in Act 13. “These aren’t novel concepts.”
Participants in the lawsuit — which also included Peters and Mount Pleasant in Washington County; South Fayette in Allegheny County; two towns in Bucks County; an environmental group and several individuals — have maintained that the law, supported by Gov. Tom Corbett and signed by him five months ago, stripped local governments of their local zoning rights and singled out the oil and natural gas industries for special, statewide zoning exceptions.
In a 57-page majority opinion written last week by President Judge Dan Pellegrini, Commonwealth Court largely agreed, overturning the statewide zoning provisions in the law as unconstitutional. Other parts of the act, including the establishment of new environmental guidelines and gas well impact fees, were left intact.
As expected, Mr. Corbett’s office announced almost immediately that it would appeal the decision to state Supreme Court, where the bench is split, 3-3, between Democrats and Republicans, due to the absence of Justice Joan Orie Melvin, who is facing criminal charges.
If the justices split evenly in their decision, the Commonwealth Court ruling would stand.
Citing “significant uncertainty” for shale gas drillers that could potentially cost jobs, two state agencies — the Department of Environmental Protection and the Public Utility Commission — on Monday requested an expedited hearing from the Supreme Court, which also would work to the advantage of municipalities in limbo, Peters Councilman David Ball said.
“As long as the appeal is pending, it’s hard for municipalities to make long-term plans,” Mr. Ball said. “We’d certainly like some finality as to where we are. … Everybody would love to have an answer.”
Even with an expedited timeline, the Supreme Court likely would not hear the case before its October session in Pittsburgh.
If the statewide zoning provision stands, Robinson Supervisor Brian Coppola said, he’s afraid local officials could be held legally liable for problems caused by the gas industry.
“We were put in a position of liability,” he said. “It made it impossible for local officials to serve.”
Many local officials, he believes, would have stepped aside rather than alter drilling ordinances that they spent thousands of dollars and hours to enact.
“I think you would have seen mass resignations,” Mr. Coppola said. “It was a no-win for us.”
The governor’s office, though, believed the law would create a level playing field with consistent regulations for the industry, which now has to contend with varying regulations, depending on where it drills or builds pipelines, compressor stations or related infrastructure.
“The provisions struck down by the Commonwealth Court are critically important for job creators who are employing more than 240,000 Pennsylvanians, for landowners seeking to exercise their property rights, and for local governments looking for guidance on how they may reasonably regulate oil and gas operations,” Mr. Corbett said in a statement.
Until the Supreme Court acts, municipalities fighting the industry on the front lines say they are struggling to keep their ordinances from being violated, especially in places such as Cecil, where the township is locked in a legal battle over a natural gas compressor station that MarkWest Liberty Midstream & Resources wants to build.
Last year, the township denied a permit for the compressor station along Route 980 due to local zoning violations, but the facility would be permitted under Act 13 rules. That led the Colorado-based company to ask Commonwealth Court for an injunction to prevent Cecil from enforcing its ordinance.
No decision has yet been announced, but the case illustrates the pitched battle between drilling companies and local governments over the zoning provisions in Act 13.
Officials in South Strabane, Washington County, likely will continue delaying development of regulations on natural gas compression stations and processing plants, township manager John Stickle said.
“My thought would be we just put things on hold until we see the outcome of the appeal,” he said.
The governor said he was confident the state Supreme Court would reverse the Commonwealth Court decision regarding the zoning provisions of Act 13 and “will adhere to its responsibility in a prompt and timely manner.”
Mr. Smith, though, believes the municipalities have the advantage with the high court, because some of the case law cited by Commonwealth Court to support its decision was created by the current Supreme Court as recently as 2009.
“We’re just comfortable in our position,” he said. “We believe we have a very good case going forward.”
South Fayette board President Deron Gabriel said the court victory has given the plaintiffs more conviction.
“The court decision was very sound and right on point, and I’m confident that the right result will be reached on appeal,” Mr. Gabriel said. “Everyone was pleased with the ruling from Commonwealth Court except for Tom Corbett and some industry players.”
Mr. Gabriel said the decision placed community zoning ordinances on “solid legal ground.”