Regardless, the industry is facing a legal offensive from the opposite direction – local zoning boards. This has been a notable week for industry appeals of rulings in New York and Pennsylvania that leave the fate of oil and gas drilling operations to municipal officials.
In New York, industry lawyer Tom West filed briefs on Monday appealing two separate lower court decisions upholding ordinances in the towns of Dryden and Middlefield to ban shale gas development. Both Dryden, in the Finger Lakes area, and Middlefield, in the Catskills, are places where support has grown for the anti-fracking movement. The crux of the appeal concerns whether the New York State Oil & Gas Solution Mining Law is similar in intention to the Mined Land Reclamation Law, which recognizes local municipalities’ rights to apply zoning ordinances for the mining industry. In separate decisions, the state’s lower courts ruled that the answer is yes. In the appeals, (which you can find here) attorney West argues for Norse Energy (representing industry) and for Cooperstown Holstein Corporation (representing landowners) that the intention of the two laws are different, and a preemption from state law that subjects mining to local control does not apply to drilling.
The lower court, citing precedent of the Mined Land Reclamation Law, determined that state’s regulatory authority applies only to how an operation is conducted, not where or if it is allowed. Therefore a ban by a municipality on the grounds of incompatible land use is permissible. The appeal argues that, unlike the mining law, the oil and gas law specifically pre-empts local law not only in regard to how operations are carried out, but where they are allowed. West said he expects the case will be scheduled in the court’s February session, with a decision six to eight weeks after the oral argument.
The degree to which local government has a right to control permitting decisions within its borders– known as Home Rule – is also playing out in a landmark case that has reached Pennsylvania’s high court. The crux of the case in the Keystone State involves the constitutionality of Act 13, a law supported by Governor Tom Corbett and passed by the Republican Controlled General Assembly early this year to reinforce the state’s exclusive authority over where and how shale gas is developed. Shale gas development in particular benefits from uniformity and predictability in policy to optimally build out infrastructure to tap reserves underlying large geographical areas over time. Act 13 was designed to support development by taking away uncertainty that comes with local municipalities enacting different and contrary decisions about land use.
The constitutionality of Act 13 was successfully challenged by a group of municipalities in Washington County. The Commonwealth Court ruled 4-3 in July that the state overstepped its authority by allowing drilling and related industrially intense activities in residential areas.
As reported by Timothy Puko of Tribe Live, about 130 people crowded into the courtroom in Pittsburg Wednesday to hear the arguments. (Note, the location in my original post was incorrect.) Many of them carried signs and banners that they had to leave at the door. At one point, the atmosphere became so boisterous that Chief Justice Ronald D. Castille threatened to evict spectators.
A panel of six (elected) judges – three Republicans and three Democrats -- heard the case. According to Puke’s report, several of the judges posed questions or made statements that appeared unsympathetic to the state’s case. While Puko explained that critical questioning is typical and not always an indication of how judges rule, some legal observers noted these questions seem to represent something more. According to Puko’s report:
Justice Max Baer told the state’s attorney, Matthew Haverstick , that his argument was “scary” to laymen, families and homeowners. Justice Seamus P. McCaffery of Philadelphia asked the attorney about “a private citizen’s right to have a quiet residential community.”The Commonwealth ruling favoring Home Rule would stand if the verdict is tied. Judges gave no indication of when they would rule. In the meantime, policy governing the future of onshore drilling will for years remain very much a work in progress involving all three branches of government, locally and nationally. Regardless of how you feel about the risks and rewards of onshore drilling compared to developing other energy sources, the stakes offer yet anther reason to vote on Nov. 6.
… Court experts were struck by how pointed the two justices’ statements sometimes were, going beyond typical questions.
“My reading of the (rule) is that Pennsylvania’s residential communities can now be turned into industrial communities where tractor-trailer traffic is running all along the streets,” McCaffery said at one point.
The justices are not inclined to make statements so far off from their eventual ruling that it would disappoint voters, said Duquesne University law professor Bruce Ledewitz.
“I don’t think they were just posing questions. I think they were posing deep-seated concerns,” he said. “It’s not just academic for them. They have to face the voters in the future.”