Lawsuit Filed: PA Towns Sue State over Marcellus Act 13 Law

A threatened lawsuit to overturn Pennsylvania’s newly passed Act 13 law that preempts local zoning ordinances passed to prevent shale gas drilling has finally materialized. The lawsuit was filed yesterday by seven PA municipalities and several other people (a copy of the lawsuit is embedded below). Act 13, signed into law in February by Gov. Tom Corbett, contains a provision that disallows local PA municipalities from passing zoning laws that are specifically aimed at preventing shale gas drilling. The loss of zoning power has some municipalities hopping mad.

Municipalities filing the lawsuit are: Cecil, Peters, Mt. Pleasant, and Robinson (Washington County); South Fayette (Allegheny County); Yardley and Nockamixon (Bucks County). Also suing are Mehernosh Khan (a Monroeville doctor), environmental activists from the Delaware Riverkeeper Network, and a handful of municipal officials. 

Act 13 has been praised by the drilling industry for bringing uniformity to regulations throughout the state. A problem faced by drillers has been even within a single county one township will allow drilling, but a neighboring township will not. Drillers with an enormous investment in leased land might see that investment disappear with two of three votes at a local municipal zoning meeting. Drillers say that local officials are usually not experts in the oil and gas business, yet they have the power to regulate that business with a simple majority vote.

On the other side of the argument, local officials say they represent the best interests of their citizens and that if they have the power to determine where, and whether, other types of industrial and business activity can be located, why not gas drilling too? Act 13 created a framework for all municipalities by laying out where gas drilling can, and cannot, happen (so many feet from this type of structure, etc.). In essence, Act 13 is a “one size fits all” zoning ordinance. And “one size fits all” does not sit well with some municipalities.

The lawsuit names as defendants Department of Environmental Protection secretary Michael Krancer, attorney general Linda Kelly, and Robert Powelson, who chairs the Public Utility Commission. The lawsuit argues, in part, that Act 13 overturns a PA Supreme Court decision in 2009 in Huntley & Huntley, Inc. v. Borough Council of the Borough of Oakmont. The Huntley v. Oakmont decision made a distinction between “where versus how” when it comes to drilling. The court said the state’s interest in oil and gas development is primarily in the efficient production and utilization of natural resources, while the county’s interest is with land use control that is consistent with local demographic and environmental concerns.

The lawsuit seeks an injunction from stopping the new Act 13 law from going into effect on April 14.

MDN’s observation: The lawsuit itself is the first 119 pages of the massive 529 pages in the embedded file below. What are the other pages? Supporting documentation. And when you look at the supporting documentation, you’ll see a variety of the standard anti-drilling claptrap. Which is telling. It says to us that this suit, while at a certain level may have merits, is being steered by extreme anti-drillers. Also interesting is that part of the draft New York drilling law (known as the SGEIS) is one of the attachments in the lawsuit.

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