Guest Post: Peters Twp Responds to MDN on Act 13 Lawsuit

Last week, MDN wrote an article about the just-filed lawsuit by a group of Pennsylvania townships seeking to strike down provisions in a new PA law referred to as Act 13 (see this MDN story). Act 13 preempts local zoning ordinances that prohibit or regulate oil and gas drilling and replaces those ordinances with a set of rules from the state. In essence, Act 13 substitutes the state’s “one size fits all” zoning ordinance for local zoning ordinances. MDN’s comment at the end of that article was that in examining some of the attachments to the filed lawsuit it seems to MDN that anti-drillers are the ones driving the lawsuit.

David Ball, a council member from Peters Township (Washington County), PA—one of the towns filing the lawsuit—emailed MDN to challenge our view and assessment that he and others filing the lawsuit are anti-drilling, and to further explain their reasons for the lawsuit. MDN asked permission to publish his comments and he accepted. This is not the very first, but perhaps the second or third guest post on MDN. We are happy (from time to time) to offer guest posts that disagree with our own views if that post is courteous, serious and advances the discussion. This one does and we thank Mr. Ball for taking the time to write.

Here is his post in its entirety:

Mr. Jim Willis
Editor – Marcellus Drilling News

Dear Mr. Willis,

I have just read your recent article titled “Lawsuit Filed: PA Towns Sue over Act 13 Law”.  I wish to comment on some assertions in the article.

Let’s begin with the final paragraph.  You state, “And when you look at the supporting documentation, you’ll see a variety of the standard anti-drilling clap trap. Which is telling. It says to us that this suit, while at a certain level may have its merits, is being steered by extreme anti-drillers.” That is an absolutely baseless conclusion. I understand that your publication is focused on the gas industry and that may be a conclusion that the industry wishes were true but I assure you it is not. Every SW PA community listed as petitioners allows drilling and have in place local ordinances that allow drilling that are consistent with local land uses and comprehensive plans. Most already have active drilling sites. Peters Township recently put forth a spirited effort to defeat a proposed change to its Charter that would have banned drilling. The proposed amendment lost by a six to one margin. These are the people who are “steering” this effort. We are anything but “extreme anti-drillers”.

Now let’s get to why we oppose a number of provisions of Act 13. Our challenge is a purely constitutional challenge. Act 13 imposes a statewide single zoning requirement on all municipalities. This “one size fits all” approach deprives the citizens of the state of multiple Constitutional rights. It is also a bill created expressly for the benefit of one industry at the expense of the citizens of the state, in and of itself a specific violation of the PA Constitution. Does anyone argue that this is not a “special law” focused entirely on the benefit of the gas industry?

The lawsuit challenges 12 Constitutional violations in the Act. The Act violates both the US and Pennsylvania Constitutions. It violates the very core rational of zoning – that is that the only constitutional rational for zoning is to protect the health, safety, morals and welfare of the residents of the municipality. What is proposed is state wide zoning and is subject to the same constitutional requirements as apply to municipalities. It would be interesting to see how the state will explain that placing heavy industrial operations in residential areas fulfills this court validated mandate. Further, constitutionally valid zoning restrictions are based upon the recognition that some land use is incompatible with other land use. Zoning laws allow communities to designate where certain compatible land uses are allowed. All communities are not the same and it is preposterous to imagine that one statewide zoning ordinance, one allowing an industrial operation in residential areas, protects the individual character of all communities as well as their health, safety, morals and welfare. It will be interesting to see how the state argues that an industrial operation is a land use compatible with residential homes and schools.

Municipalities are mandated to conform zoning restrictions to Comprehensive Plans. These plans, along with implementing zoning ordinances, provide for the welfare of residents when they invest in their property and when communities plan their growth. It will be interesting to see how the state argues that indiscriminate industrial operations are consistent with mandated comprehensive plans. Spot zoning, which is what indiscriminate insertion of drilling sites in residential and other incompatible areas becomes, is expressly forbidden, not only to the municipalities but to the state as well.

Act 13 violates the separation of powers part of the PA Constitution by granting the PUC, an executive agency, both legislative and judicial powers. It also gratuitously forbids healthcare professionals from sharing critical diagnostic information with regard to potential health issues that might be related to chemicals used in the drilling and fracturing process, a restriction applied to no other industry. It will be interesting to see how the state argues that this is not constitutionally forbidden “single subject” legislation.

There are a number of other constitutional questions raised in the suit but hopefully you get the picture. This suit is a serious and sincere effort by municipalities that face potential ruin by indiscriminate and uncontrolled drilling to protect the constitutional rights of their citizens as they are constitutionally and legally mandated to do. Not to challenge such a poorly crafted law would be gross dereliction of duty.

Of course, as you note, the drilling industry praises this bill. Why wouldn’t they? They wrote it and it is 100% in their favor. You imply that there are townships that are preventing drilling. A very few may have passed misguided ordinances to that effect but they are unlikely to withstand legal challenge under the existing Oil and Gas Act so this is a spurious argument. You state that local officials are not experts in the oil and gas business. True. But neither are oil and gas companies expert in municipal development and operation. Municipalities have the power to regulate business with “a majority vote” because the Constitutions of the US and the Commonwealth of PA say they do. This is a basic principle of our nation. It is unfortunate if the gas companies feel “burdened” by having to “fight the battle” to drill town by town. Every other industry has to. State law does not exist to make the usurpation of citizens’ rights easy, it exists to protect them. We are simply asking the courts to strike down unconstitutional infringements on our rights as citizens. In America it is “We, the people”, not “They, the gas companies”.

Sincerely,

David M. Ball
Peters Township