Home Rule Didn’t Work in PA, So Why Would it in NY?

The headline of this post is the point of a press release issued earlier this week by the Dryden Safe Energy Coalition (DSEC), a group based near Ithaca, NY that seeks to remove the hype and emotion from the debate over hydraulic fracturing and shale gas drilling and instead provide science and facts. The DSEC issued a press release (below) which makes the point that Pennsylvania has had a lot more experience with shale gas drilling than New York and has found that a “patchwork quilt of local regulations” on the municipal level did not work, so PA replaced home rule with statewide regulations.

The DSEC says: “If local home rule does not work in Pennsylvania, it is clear it will not be workable in New York.” (Listen up, NY Republican State Senator James Seward.)

From the DSEC press release:

On February 14, Pennsylvania abolished natural gas local home rule and substituted a new statute, 58 PA C.S. 3301 through 3309, effective April 14.  It expressly preempts local home rule of natural gas development across the state.  The new statute covers all existing and future local ordinances regulating oil and gas and mandates that all local ordinances, including zoning, permit reasonable development of oil and gas.

The gas industry has consistently sought uniform regulation throughout Pennsylvania, finding it difficult to work within the patchwork quilt of local regulations.  On April 14, local governments will be prohibited from imposing requirements or limitations on gas operations more restrictive than those placed generally on industrial activities (not just on “heavy” industry).  Section 3304 mandates localities allow, as permitted zoning uses, oil and gas activities, (other than those at impoundment areas, compressor stations and processing plants).

The new statute has teeth to prevent evasion and protect minority interests that have been trampled by runaway activist local governments.  Pennsylvania’s Public Utility Commission is the designated arbiter of disputes alleging failure of local governments to comply with the new rules.  Courts will be able to award attorney fees and costs to plaintiffs when it is determined that a municipality enacted an ordinance with willful disregard for the new statute’s requirements.  Local governments violating the statute will also be stripped of certain tax revenues until they repeal or alter the improper ordinances.

Dryden Safe Energy Coalition (DSEC) co-founder Tom Reynolds said, “Home rule in such a complex field as gas development has proven impractical in Pennsylvania, a state with far more energy development experience than New York.  The repeal shows how inconsistent local regulation and selective zoning are with state and national economies and markets.  DSEC has previously pointed out that a patchwork quilt of local regulations impedes the creation of high paying jobs and limits large scale economic development, while substituting the not in my back yard (NIMBY) syndrome.”

“In New York, runaway local governments pass laws in violation of state laws and the only option for local opponents is to spend $100,000 or more to sue the town.  By awarding court costs and attorneys fees in such cases, Pennsylvania has given minorities, whose rights have been trampled, an option that New Yorkers do not have available to affordably obtain justice.”

DSEC co-founder Henry S. Kramer noted, “The change of direction in Pennsylvania’s law, in a state where energy development is far more advanced than in New York, should give New York pause about local home rule on this issue.  If local home rule does not work in Pennsylvania, it is clear it will not be workable in New York.  The Pennsylvania legislature left no room for doubt, gas development laws by local government, including zoning ordinances, cannot single out the gas industry and are entirely preempted by state statute.  It is interesting that this major course change in Pennsylvania went largely unremarked in this area.”

DSEC co-founder Tracy Marisa said, “The new Pennsylvania law will restore individual rights to Pennsylvania landowners to choose for themselves whether or not to lease their land, in contrast to some New York localities that have been moving to expropriate the rights of landowners, without compensation.  The transfer of choices from individual to locality as in Dryden is a slippery slope.  If we allow it to happen, how far will local governments go to enforce conformity with a local majority’s biases?  When they come for whatever rights you value, who will be left to defend those rights, the laws protecting individuals being down?”

*Dryden Safe Energy Coalition (Mar 11, 2012) – Pennsylvania Repeals Home Rule for Gas (emailed)