Marc Levy and Mark Scolforo
The highest court in Pennsylvania, heart of the country’s natural gas drilling boom, on Thursday struck down significant portions of a law that limited the power of local governments to determine where the industry can operate – rules the industry sought from Republican Gov. Tom Corbett and lawmakers.
In a 4-2 decision, the Pennsylvania Supreme Court ruled the industry-friendly rules set out by the 2012 law violated the state constitution, although the majority did not entirely agree on why they were unconstitutional.
State Sen. John Wozniak, D-Westmont, welcomed the ruling, saying, “It’s important to give the local communities certain controls, especially when it comes to protecting their own water supplies.”
What’s more, Wozniak said, the ruling will reopen discussion on overall regulations for the drilling industry.
“This will require us to create remedial legislation that opens Act 13 back up,” he said, noting that bipartisan legislation was introduced this week to create a 4.9 percent drilling tax on Marcellus Shale natural gas.
The tax would be a simpler way for taxpayers to benefit from the booming industry, as opposed to what Wozniak called the “convoluted” impact fees included in another section of the law affected by Thursday’s court ruling.
Wozniak admits there was not enough support to include an extraction tax during debate on the law last year.
“Things have changed since that last happened, so stay tuned,” he said.
Seven municipalities had challenged the 2012 law that grew out of the state’s need to modernize 20-year-old drilling laws to account for a Marcellus Shale drilling boom made possible by innovations in drilling and technology, most notably hydraulic fracturing. The process, also called fracking, has drawn widespread criticism from environmentalists and many residents living near drilling operations.
“Few could seriously dispute how remarkable a revolution is worked by this legislation upon the existing zoning regimen in Pennsylvania, including residential zones,” wrote Chief Justice Ron Castille. He said the law’s rules represented an unprecedented “displacement of prior planning, and derivative expectations, regarding land use, zoning, and enjoyment of property.”
The 2012 law restricted local municipalities’ ability to control where companies may place rigs, waste pits, pipelines and compressor and processing stations. The new zoning rules have never gone into effect because of a court order. A narrowly divided lower court struck them down in 2012, but Corbett appealed, saying lawmakers have clear authority to override local zoning.
Among the objectionable provisions cited by the lawsuit were requirements that the high-impact operations be allowed in every zoning district, including residential areas, as long as buffers were observed.
“We must not allow today’s ruling to send a negative message to job creators and families who depend on the energy industry,” Corbett said.