Sunday, October 27, 2013

Municipalities Take a Whack at Fracking

As Pennsylvania’s Marcellus Shale play creeps toward maturity, New York is struggling to decide how to move forward with the drilling process of hydraulic fracturing (fracking).  When New York instituted a moratorium on fracking in 2008, the State began intensively studying the impacts of the unconventional drilling process and closely watching how other states, such as Pennsylvania, have managed Marcellus Shale development and regulation of the industry. Currently, the New York State Health Department is conducting a health impact analysis that is expected to help guide regulatory decisions on fracking in New York, if and when the moratorium is lifted. Since 2008, a number of municipalities have enacted zoning regulations to ban fracking in order to protect their communities from an uncertain future of oil and gas development in New York.

The Fight in New York

A recent New York Times article focused on the zoning fight over fracking that is brewing in New York. Currently being litigated in the State’s court system is whether a municipality (e.g. Dryden, NY) can ban fracking through zoning laws. Municipalities forbidding unconventional drilling is not a new concept as bans have been adopted in other areas of New York and in cities such as Pittsburgh, PA and more recently in State College, PA, where we are located. The Dryden case is in front of the New York State Court of Appeals after the lower courts sided with Dryden in ruling that it is within its rights to establish zoning laws that restrict fracking. The Court of Appeals is not expected to rule on this case or a similar one until 2014. With the pending health impact analysis expected to be completed in the near future, all eyes will then turn to Gov. Cuomo and his decision regarding the fracking moratorium.  

The Fight in Pennsylvania

In April 2012, Pennsylvania Act 13 was passed with provisions that revoked municipalities’ ability to make zoning decisions regarding fracking. The provisions of Act 13 related to zoning were subsequently challenged in court and the PA Supreme Court ruled that the provisions were unconstitutional and an injunction blocked the portions of Act 13 related to zoning. Despite the ruling by the Supreme Court, there has been a petition by the State to reopen the case because at the time of the ruling there were only 6 sitting Justices (due to the legal troubles of Justice Joan Orie Melvin) and the court split 3-3 upholding the lower court ruling. The recent addition of Justice Correale Stevens prompted the State’s petition to request that the full Court hear the case so that Justice Stevens could participate. It is unclear if the Supreme Court will take the case under review and if so would Justice Stevens be able to participate since he was not present for the original oral arguments in the case.

The Court is Referee

As the fight over municipalities’ ability to control fracking through zoning continues in Pennsylvania and New York, supporters of standardized zoning point out that uniform state-wide regulations will simplify the permitting process and protect drillers’ investments in land leases. On the other side, local officials argue that standardized zoning removes their ability to represent the best interests of the citizens in their district. While there are no simple answers when it comes to managing fracking near cities and towns, the courts will be setting crucial precedent in Pennsylvania and New York. As consultants working in the legal and environmental arena, we will continue following and reporting on Shale gas related issues that impact our work. 

Submitted by Eric Chase, P.G.

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