Regulating Drilling in PA Pits State Against Municipalities

tug of warThere is a “tug of war” going on in Pennsylvania for who will ultimately control where, and under what conditions, Marcellus Shale gas wells can be drilled. The struggle pits the state against local municipalities. As with many issues surrounding shale gas drilling, this one is complicated.

Pennsylvania has more than 2,500 township and municipal governments across the state—more than any other state—even though there are four other states with larger populations (CA, TX, NY, and FL). Local governments are responsive to the people in their communities.

But when it comes to the issue of drilling, local governments, in being “responsive” are often trampling the rights of local property owners to use their land as they see fit. Local municipalities will say they regulate where malls and shopping centers can be built, where factories can be built, and whether or not land in residential areas can be re-zoned for other purposes, on a case by case basis. Why not the industrial process of constructing a gas well? And they ask the state, “Would you like it if the federal government stripped away your rights to self government? Why do you want to take away ours?”

Those who want to see drilling regulated by the state will say that often just two people sitting on a town board can vote to pass an ordinance that in essence will prevent drilling in the entire township, a decidedly undemocratic action than penalizes landowners, and that local politicians do not have the requisite knowledge to know how best to regulate (via ordinance) oil and gas drilling. If local municipalities are allowed to continue flouting PA law, which says that state laws supersede local laws for oil and gas drilling, it creates a difficult “atmosphere” for drillers. If the rules for drilling are different from township to township, drillers are less likely to drill, period.

Two recent articles, one written by Kathryn Klaber, executive director of the Marcellus Shale Coalition, and one written by Richard Ward, Township Manager for Robinson Township (Washington County), PA and a member of the Marcellus Municipal Co-op, illustrate the positions of both sides.

From Ms. Klaber, writing to support regulation of gas drilling at the state level:

Pennsylvania has more than 2,500 township and municipal governments, more than California, Texas, New York, or Florida – all of which have significantly larger populations. These local governments are critical to the delivery of basic services and, being close to the people, can be more responsive and accountable to them.

But if local government is where everything begins in this state, it can also be where it comes to an end. Unfortunately, vague statutes and conflicting court rulings have created a situation in which two or three officials from a single township or borough can stand in the way of economic development even when they’re in direct contravention of state law.

This is posing a threat to the already tightly regulated natural-gas exploration industry in the state. Even though Pennsylvania’s Oil and Gas Act states, in very clear terms, that "all local ordinances and enactments purporting to regulate oil and gas well operations regulated by this act are hereby superseded," local government actions continue to unnecessarily impede the responsible development of clean-burning, job-creating natural gas in the commonwealth.

On any given night, a local governing body in Pennsylvania can pass a zoning or other ordinance that effectively eliminates the ability of landowners and businesses to develop natural gas on their property. Passing such a measure typically requires only a brief notice and public hearing, followed by a majority vote of a local governing board, which amounts to only two people in many municipalities.

By contrast, it can take months or even years to pass important legislation at the state level, and just as long to develop state regulations that cover a range of critical activities. Frankly, that’s the way the system was meant to work.

The state legislature and Gov. Corbett’s administration have been working on commonsense solutions to the serious challenges posed by inconsistencies among local governments. The goal is to establish consistency across the commonwealth in the management of land uses associated with natural-gas development, making it clear that any use of land associated with these activities is permitted in appropriate areas of any municipality. Such regulatory certainty would go a long way toward ensuring that the state’s natural-gas reserves can be developed in a safe, orderly, and efficient way.

That would in turn ensure that Pennsylvanians continue to reap affordable energy prices, job creation, and other economic benefits associated with gas development. According to a recent analysis, in 2010 alone, Pennsylvania consumers, including those who live in the Philadelphia area, saved an estimated $633 million in energy costs as a result of natural-gas development in Pennsylvania. And more than 200,000 men and women in the commonwealth enjoy family-sustaining employment in the natural-gas and related industries, according to the state Department of Labor and Industry.

A comprehensive, uniform set of statewide health, environmental, and safety standards is critical to ensuring that investment and job growth continue to benefit Pennsylvanians. The legislature’s recent efforts to assure regulatory clarity and certainty are key to keeping the state competitive and maximizing the economic, environmental, and energy benefits of natural gas.(1)

And from Richard Ward, writing to oppose House Bill 1950 which would clarify that it is the state who regulates drilling and not local municipalities:

On Behalf of Cecil, Hanover, Mt. Pleasant, Robinson-Washington County, and South Fayette Townships—as well as several other townships from the 18 communities of Washington, Beaver, and Allegheny counties that compose the Marcellus Municipal Co-op—we would like to state our opposition to House Bill 1950.

In particular:

Our communities are on the frontlines of the Marcellus Shale play and are affected on a daily basis by the effects of this industry. Over the past several years, our local communities have worked to develop reasonable laws and ordinances to protect the safety, health, and welfare of our residents.

These ordinances are designed to allow the industry the ability to operate while ensuring that our communities are affected in the smallest way possible.

Each of our communities is different. Whether by topography, by population density, or any of a number of other things, we are all unique. Because each community is unique, the need to address issues related to Marcellus Shale drilling, or any industry for that matter, must remain at the local level.

House Bill 1950 would strip local communities of the ability to regulate what happens in their towns, cities, and boroughs. This power grab, fully supported by the governor is not only wrong, but a clear indication that Harrisburg is out of touch with the needs of the local communities they are supposed to represent.

If the federal government stepped in and told Pennsylvania that they were taking authority away from them to self-govern, the House and the Senate would be up in arms. This situation is no different. Not only is there State Law to support local governance, but there is also State Supreme Court rulings protecting that right. To allow this bill to become law is an insult to the local municipalities, a disregard for the state Supreme Court, and a caving in to the Industry and their special interest groups.

We are in favor of business and industry bringing jobs and revenue to our communities, but we should not be forced to do so without the ability to regulate operations within our boundaries.

There is nothing so special about the Marcellus Shale industry that they should not be required to comply with local zoning laws that any other business coming to a community would be required to follow.

Local zoning allows municipalities the ability to protect themselves and their residents from companies who don’t want to play by the rules. Ordinances vary from municipality to municipality and from type of business to type of business because each is unique.

For example: A garbage dump is very different from a sexual-oriented business and the local rules address each appropriately. Marcellus well drilling is different from a convenience store, and the rules to operate each need to reflect that. The State has no place in dictating a generic set of rules that all municipalities would be forced to follow. To suggest that one set of rules fits all communities is short-sighted and irresponsible.

The industry would have us all believe that they can’t compete fairly in PA because they have so many different sets of rules to follow. The amount of money generated thus far by Marcellus drilling suggests otherwise. This is not an industry hurting because of local regulation. This is simply an industry not accustomed to following local rules.

The potential to repeat the coal debacle of decades ago and all of the impacts that were, and still are, associated with it are the very reason local municipalities need to retain the ability to regulate this industry at the local level. The industry argues that centralizing the rules would be beneficial to all municipalities in Pennsylvania. They argue that there are many municipalities in the state that do not have local rules in place and this legislation would provide protections to them.

The truth is that it benefits the industry. It would allow them to operate with little, if any oversight and without fear of reprisal if they break the rules. In a State that is already financially struggling, to suggest that a State agency be given the additional task of monitoring and policing the industry more than they are now is ludicrous.

The only reason the industry plays by any of the rules now is because the local municipalities are there to set the standards and monitor their activities. Take that away and you’re opening Pandora’s box.

Regardless of which side of the aisle you sit on, big government doesn’t work when it comes to policing at the local level. Even in war, you have commanders at the top who understand that you can only win by allowing those in the field and on the ground the power to make decisions and have some control over what happens on the battlefield. This is a now a battlefield. The Environmental Protection Agency and the Department of Environmental Protection command at the federal and state levels, but there MUST be command and control at ground zero (the municipal level).

To do anything else is to ensure failure and destine this State to repeat the disasters of the coal industry from decades ago. If left unchecked, it allows a greedy industry to continue to ruin a beautiful state with no regard for the people or land they affect.

We and the residents of the 18 municipalities we represent urge you to not to pass HB 1950. As the leaders of our great state, we’ve put our trust in you to do what’s right for Pennsylvania. We hope you make the right decision. We make our decisions at election-time based on how those we elect to represent us do so. Show us we made the right decision and show the industry that this is still a government of, by, and for the people.(2)

(1) Philadelphia Inquirer (Nov 14, 2011) – Drilling rules: State best suited to make big decisions

(2) Canon-McMillanPatch (Nov 15, 2011) – Marcellus Municipal Co-op: We Oppose HB 1950

  • Anonymous

    You repeated the quote “often just two people sitting on a town board can vote to pass an ordinance that in essence will prevent drilling in the entire township”. Perhaps so, but is this any different at the state level? Your own column has reported the same thing happening in New York at the state level. And on the reverse side, a single influential politician who is deep in the pocket of big oil has delayed appropriate taxes and legislation in Pennsylvania.

    We need good federal and state regulation. AND we need the opportunity for local governments to add additional taxes and regulations when they feel it is appropriate.

  • Anonymous

    “often just two people sitting on a town board can vote to pass an ordinance that in essence will prevent drilling in the entire township, a decidedly undemocratic action than penalizes landowners…”
    That’s why we have elections, so that undemocratic actions can be penalized by the majority. 

    If this is such an issue in these towns, then maybe the landowners are not in the majority and the rest of the citizenry are beginning to question whether the state is really acting in their best interests, or the interests of a minority.  

  • Jim Willis

    Your point is precisely why I highlighted this Bob. It’s an important issue. You’re right, that’s what elections are for and perhaps the landowners in those townships will need to wait an election cycle to correct such things. That same thought had occurred to me when I was posting the story.

    But, the tension is that the landowners also have rights (property rights) and may be “harmed” economically if not allowed to exercise those rights in a timely manner–especially if by exercising those rights they don’t harm their neighbors (and I would argue fracking does not harm others, which is the issue on which this all turns).

    The founders struggled with the same kinds of issues and it resulted in the genius of the United States Constitution–that is, how do you allow democracy (one vote for each person) without having it turn into mob rule where the majority tyrannizes the minority? It created our representative form of government–and so maybe that is the way this should be handled–by the town boards. But is it OK for local representatives to supersede the authority granted to citizens–their property rights? And is it OK for local representatives to supersede the state? Let PA try to supersede the federal government and see how quickly they would be put in their place!

    This is a tough, tough issue, and there are no easy and quick answers. I wanted to show both sides of this debate so others can think about it too, and leave comments like yours.

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