A Pennsylvania appeals court on Thursday overturned several parts of a state law regulating Marcellus Shale development that local governments argued took away their ability to protect residents from unwanted natural gas drilling operations.
In a 4-3 decision, the court said language in the five-month-old law, Act 13, violated due process provisions of the state constitution. In its hearing on the suit, the court focused on language that gave the state pre-eminence over local drilling ordinances.
Writing for the majority, President Judge Dan Pellegrini said 150 unconventional wells had been drilled within the borders of several municipalities. He said the law prevented local governments from fulfilling their constitutional and statutory obligations to protect health and safety and said the law required that local governments change their zoning laws.
The judge said Act 13 "violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications." He called the law "irrational" because it required municipalities to allow all aspects of the drilling in all zoning districts.
The local governments had also argued that the state law treats the oil and gas industry differently from other extraction industries. But the judge said those provisions are constitutional "because the distinction is based on real differences that justify varied classifications for zoning purposes."
But Pellegrini did agree with the local governments' contention the law gave too much discretionary authority to the state Department of Environmental Protection.
The judge said the gave the DEP "the power to make legislative policy judgments otherwise reserved for the general assembly."
The Marcellus Shale Coalition President Kathryn Klaber said in a statement the Pennsylvania General Assembly sought "to provide certainty and predictability that encourages investment and job creation across the Commonwealth."
"Lack of uniformity has long been an Achilles' heel for Pennsylvania and must be resolved if the Commonwealth is to remain a leader in responsible American natural gas development and reap the associated economic, environmental and national security benefits," she said.
PennEnvironment Clean Water Advocate Erika Staff said called the decision "a welcome victory" for environmentalists. The decision "reaffirmed what Pennsylvanians from every corner of the state already know, that when it comes to dangerous gas drilling, local communities must have the ability to make thoughtful decisions to protect our citizens, our environment and our quality of life," she said.
