Litigation

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    Major Federal Court Decision Opens Door to Stop DRBC Frack Ban

    A lawsuit that began in 2016 is finally bearing fruit, and may lead to blocking efforts by the rogue Delaware River Basin Commission (DRBC) to block fracking in Wayne and Pike counties in Pennsylvania. In May 2016, a landowner in Wayne County filed a lawsuit against the DRBC asking a judge to declare that the DRBC does not have jurisdiction to prevent construction of a natural gas well (see Wayne County, PA Landowner Sues DRBC Over Fracking Ban). The Wayne landowner argued in U.S. District Court that oil and gas wells, under the DRBC’s charter, do not constitute a “project” that is regulated by the DRBC and therefore are exempt from oversight from the DRBC. The way the DRBC so broadly reinterprets the word “project” in the original charter, it allows them to regulate anything and everything. In March 2016, MDN reported that U.S. District Judge Robert Mariani ruled against the landowner (see Judge Tosses Wayne County, PA Landowner Lawsuit Against DRBC). At first blush it seemed like a setback for landowners in Wayne and Pike counties. But looks can be deceiving. As we pointed out, when you read the judge’s decision, he harpoons all of the DRBC’s legal arguments, but in the end rules against the landowner. Why? Because the judge wanted to send the case to a higher court for an ultimate decision–the 3rd Circuit Court of Appeals. Which is precisely where the case ended up. Last November oral arguments were heard in the appealed case. The DRBC’s lawyer conveniently had a couple of fainting spells that delayed the proceedings when tough questioning didn’t go his way (see DRBC Lawyer Nearly Faints 2nd Time When Questioned by Fed Judges). On Tuesday, July 3rd, the 3rd Circuit Court of Appeals ruled, sending the case back down to U.S. District Court with orders to more fully consider what is, and what is not, meant by the word “project” in the original DRBC charter. Interpretation: This is a MAJOR victory for the landowner, and a MAJOR defeat of the DRBC. No, the case isn’t over yet, but now the full case will get heard. The legal arguments in the case clearly support the landowner. The rogue DRBC is very nervous, as evidenced by reaction from their proxy mouthpiece, THE Delaware Riverkeeper…
    Read More “Major Federal Court Decision Opens Door to Stop DRBC Frack Ban”

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    Enviro Radicals Target MVP in Va. Following WV Court “Win”

    The lawyers that infest the Sierra Club are still celebrating a temporary court victory last week that essentially stops construction of the Mountain Valley Pipeline (MVP) in West Virginia (see Sierra Club Succeeds in Delaying MVP Project in WV via Court Order). Their strategy was/is to bamboozle a court into stopping construction at stream crossings (hundreds of them) by using a technical loophole that MVP can’t complete required work at four of the crossings within the stated 72 hours, therefore the court needs to reassess the umbrella permit issued for all crossings. So the court is doing that, temporarily suspending work at all 591 streams MVP plans to cross in WV. The Sierra Clubbers think that because they won that temporary court victory in WV, maybe they can get lightening to strike twice, convincing the court to pull the permit in Virginia too…
    Read More “Enviro Radicals Target MVP in Va. Following WV Court “Win””

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    Anti Group Sues WVU to Disclose Details of $83.7B China Deal

    Appalachian Mountain Advocates, a far-left, radical anti-drilling organization that some media outlets refer to as a simple “nonprofit law firm,” has filed a lawsuit against West Virginia University to force the university to hand over privileged and secret communications concerning the deal WV struck with China to invest $83.7 billion in the state, in the shale and petrochemical industries. As you may recall, that deal was announced last November (see China Agrees to Invest Amazing $83.7 BILLION in WV Shale, Petchem). The particulars of the “deal” have never been announced–other than the top line number of $83.7 billion in investments. In fact, the “deal” was called a “memorandum of understanding” (MOU), which we said at the time: “[the deal] signed in China yesterday is a Memorandum Of Understanding (MOU). It’s a handshake–a gentleman’s agreement. And sometimes those agreements disappear. So this is far from a done deal.” In early December, following calls to disclose the deal, WV Gov. Jim Justice said the specifics are confidential (see WV Gov Justice Says China Investment Specifics are “Confidential”). So now, here comes a Big Green group trawling for trash–attempting to use (abuse) anything they can to make trouble for the shale industry. They hope if they can get their hot red hands on emails to and from the Red Chinese, they can fabricate a mountain out of a mole hill…
    Read More “Anti Group Sues WVU to Disclose Details of $83.7B China Deal”

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    Sierra Club Succeeds in Delaying MVP Project in WV via Court Order

    The insidious and well-funded Sierra Club has scored another temporary legal victory in stopping Mountain Valley Pipeline (MVP) construction throughout West Virginia. One month ago we reported that the Clubbers had claimed a temporary victory in stopping construction work of MVP at four river crossings in WV. At that time (in May), the Clubbers and a mishmash of other radicalized groups filed a motion asking the Fourth District U.S. Circuit Court of Appeals to suspend a permit issued by the U.S. Army Corps of Engineers that allows MVP to construct the pipeline across streams and rivers in the Mountain State (see Army Corps Engineers Suspends MVP Permit for River Crossings). The Clubbers’ tortured logic was this: When constructing the pipeline across a river, the stated government standard is that construction can take no longer than 72 hours. MVP says it will need longer when constructing the pipeline across four rivers–Elk, Gauley, Greenbrier and Meadow. Therefore (say the Clubbers), MVP is in violation of the general permit issued by the Corps and that means ALL (not just those four rivers) construction should be stopped, immediately. The Corps said they had reviewed the standards and have (for now) rescinded the permit as it applies ONLY to those four rivers, NOT to any other locations. However, the Fourth District Court ruled late last week that construction at all 591 stream crossings the pipeline traverses must now be immediately stopped until the court farts around and considers the full lawsuit brought by the radicalized Clubbers. Enough of this nonsense!…
    Read More “Sierra Club Succeeds in Delaying MVP Project in WV via Court Order”

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    PUC Says PA Strippers Reduced 2017 Impact Fee by $6.1 Million

    Once again we’re talking about strippers. Uh, stripper *wells* that is. In 2012 Pennsylvania passed the Act 13 drilling law that includes an impact fee on wells targeting shale layers, including the Marcellus. Snyder Brothers, headquartered in PA, drills mostly conventional (vertical only) wells in southwestern PA. In 2011-2012 they drilled 45 vertical-only wells targeting the Marcellus. All 45 of the vertical-only wells were fracked. Initially those wells produced more than 90 thousand cubic feet per day (Mcf/day), but by December of the year in which they were drilled, the wells produced less than 90 Mcf/day. The way the 2012 Act 13 law is written, if a well produces less than 90 Mcf/day during “any” month it is considered a stripper well and exempt from paying the impact fee. The state’s Public Utility Commission (PUC) assessed the fee anyway because for 11 months the wells produced more than 90 Mcf/day, arguing the word “any” is not a get-out-tax-jail-free card. Snyder Bros. sued and after an appeal of the case, Snyder Bros. won the case in March 2017, exempting those wells from paying impact fees (see PA Court Says Snyder Bros Wells are Strippers, No Impact Fees Due). That sent the state Public Utility Commission (PUC) into a tizzy with claims the Act 13 impact fees are now in jeopardy. So the PUC appealed the case to the PA Supreme Court. The Supremes heard arguments in the case in April (see PA Supreme Court Takes a Close Look at Strippers…as in Wells). The PUC released its full impact fee revenue generated and disbursed report yesterday (see today’s lead story). The PUC reports that not only are the fees from the Snyder wells missing from the total, but fees for some wells from other drillers as well–some 318 wells in all. Those other drillers cite the Snyder Bros. case as evidence they don’t owe money on what they consider to be stripper wells. In fact, when you total it all up, the PUC says the impact fee revenue for 2017 would have been ~$6.1 million higher if the “missing” fees from those 318 wells were part of the mix…
    Read More “PUC Says PA Strippers Reduced 2017 Impact Fee by $6.1 Million”

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    NY Landowner Who Sued for “Takings” re Frack Ban Loses Fed Case

    Is this the sad end to a noble cause? In 2015 MDN told you about an Allegany County, NY attorney/landowner who filed a lawsuit against the New York Dept. of Environmental Conservation (DEC) over their infamous and politically-motivated ban on fracking (see 1st Lawsuit Filed Against NY Cuomo Frack Ban – in Allegany County). The lawsuit was filed in state Supreme Court in Allegany County. Don’t be fooled by the Supreme Court label. In NY, Supreme Court is one level up from county court. The Supreme Court judge tossed the case saying the attorney/landowner didn’t have standing to file the lawsuit in the first place because he never had a permit to drill on his property. The Appellate Division later upheld the decision. The attorney/landowner then filed the same lawsuit in federal court–bypassing Cuomo-appointed state judges–in federal court last December (see NY Resident (& Lawyer) Sues DEC in Federal Court re Frack Ban). On Monday U.S. District Judge Michael Telesca ruled in that case–against the attorney/landowner, on what amounts to a technicality, saying the case violates the 11th Amendment of the U.S. Constitution which protects states from being sued for money in a federal court. Is this now the end? Does our intrepid attorney/landowner, have anything else up his legal sleeve?…
    Read More “NY Landowner Who Sued for “Takings” re Frack Ban Loses Fed Case”

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    Dela. Riverkeeper Pressures DRBC to Revoke ME2 Pipe Permit

    Here’s the latest strategy in THE Delaware Riverkeeper’s ongoing war against fossil fuels, and against natural gas pipelines in particular: Pressure the Delaware River Basin Commission (DRBC) to revoke a permit granted by the agency to the Mariner East 2 (ME2) pipeline project on the flimsy basis that ME2 has “violated” the conditions of the permit. Frankly, we didn’t even know the DRBC had issued a permit for ME2. After all, ME2 is a state-permitted project and does not come under federal authority. We doubt the DRBC has legal authority to issue a permit for the project–but if no one challenges them, their authority stands. ME2 probably thought it easier to just get the permit and not squabble over it. According to Big Green mouthpiece PBS StateImpact Pennsylvania, the DRBC is actually considering Riverkeeper’s request. The problem with this latest strategy by Riverkeeper is that DRBC’s executive director, Steve Tambini, is so weak, he may fold like a cheap deck of cards and actually do it. Tambini, who has been a major disappointment since taking over from the ultra-leftist Carol Collier, seems happy to take his marching orders from Riverkeeper. We have to wonder if this latest strategy will bear fruit. A scary proposition. But Riverkeeper isn’t content to try and scuttle ME2 by pressuring the weak DRBC as its only strategy. Last week the DRBC filed a “groundbreaking” lawsuit against the ME2 project in U.S. District Court for the Eastern District of Pennsylvania, meant to stop the project by court order…
    Read More “Dela. Riverkeeper Pressures DRBC to Revoke ME2 Pipe Permit”

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    PA PUC Overrules Lib Judge – Mariner East 1 Returns to Service

    As MDN predicted, yesterday the Pennsylvania Public Utility Commission (PUC) voted to overturn a previous action by liberal administrative law judge, Elizabeth Barnes, to shut down the Mariner East 1 (ME1) pipeline (see Antis Get Lib Judge to Shut Down All Mariner East Pipes, Dems Rejoice). ME1 is back up and running. All five PUC members supported returning ME1 back to service. However, three of the five PUC members agreed with Judge Barnes’ decision to temporarily shut down work on the Mariner East 2 pipeline project in West Whiteland Township (Chester County). Two of the five PUC members wanted all of Barnes’ ruling to be overturned. The reporting on this is somewhat confusing. PUC Chairwoman Gladys Brown put forward a motion to (a) turn ME1 back on, and (b) keep ME2 in West Whiteland stopped, for now, pending more information from Sunoco Logistics. The vote was 3-2 in favor of Brown’s motion. The 2 voting against it did so because it didn’t go far enough (they wanted ME2 construction to resume). So although the vote was 3-2, all 5 of the members wanted ME1 back on. That’s the real nub of the news–the subtlety that’s missed in most media reports. The 3-2 “split decision” that’s being reported is the decision to overrule Barnes on ME1, but keep her ruling intact (for now) on ME2. The PUC has ordered Sunoco to provide more information in the next 20 days: inspection and testing protocols, emergency response plans, and copies of safety training curriculum for employees and contractors. The PUC will then reconsider whether or not to allow ME2 work to resume in West Whiteland. But here’s the thing: Work on the rest of the 300+ mile pipeline continues everywhere else in the state–everywhere but West Whiteland. Overall, yesterday’s PUC action was a crushing defeat for PA State Sen. Andy “Tony Soprano” Dinniman (Democrat) and his Big Green cronies who want to assassinate the entire ME1 & ME2 projects by focusing on one small area…
    Read More “PA PUC Overrules Lib Judge – Mariner East 1 Returns to Service”

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    Federal Court Upholds Ohio Forced Pooling Law in Chesapeake Case

    In 2015, landowners in Harrison County, OH who own 127 acres (the Kerns) filed a lawsuit alleging their property rights were about to be violated because Chesapeake Energy had filed a pooling request with the Ohio Dept. of Natural Resources (ODNR) to pool (combine) the Kerns property with surrounding properties for shale drilling. The Kerns had not signed and do not want drilling under their land. Their neighbors do. Ohio has a law on the books that allows for “forced pooling” in cases when a majority of the surrounding land is leased but landowners with small positions refuse to sign. The Kerns resisted and fought the case all the way to Ohio Supreme Court, which rejected their claims. Chesapeake drilled and fracked three wells (on a neighboring property), which included drilling under the Kerns’ property. So the Kerns filed a new lawsuit in 2016, in federal court, claiming a “taking” of their property had occurred. The federal court has just ruled–against the Kerns. This was the first time a court case dealt directly with the constitutionality of Ohio’s unitization (forced pooling) law. The upshot: Ohio’s forced pooling law remains intact and in force…
    Read More “Federal Court Upholds Ohio Forced Pooling Law in Chesapeake Case”

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    Despite Court Ruling, Atlantic Coast Pipeline Continues Construction

    In May MDN told you that the U.S. Fourth Circuit Court of Appeals had invalidated (vacated) a permit issued by the U.S. Fish and Wildlife Service that allows Dominion Energy’s Atlantic Coast Pipeline (ACP) to accidentally kill a few bats and bumble bees (classified as endangered) as it builds the massive $6.5 billion, 600-mile project from West Virginia to North Carolina (see U.S. Fourth Circuit Court Vacates Key Permit for Atlantic Coast Pipe). The Sierra Club and several other radical, far-left groups were behind the court case that led to the decision. However, as it turns out, the decision doesn’t really hurt the project all that much. The vacated permit isn’t so “key” after all. Of the 600 or so miles of pipeline getting built, the vacated permit from Fish and Wildlife only affects about 10 miles of pipeline (see Only 10 Miles of Atlantic Coast Pipeline Affected by Court Ruling). The radicals are back, not happy that only 10 miles of pipeline is idled for now. In a “but, but, but, but, but” request to the Federal Energy Regulatory Commission (FERC), the antis argue FERC should shut down the whole enchilada–because they don’t like having just 10 miles shut down. Meanwhile, Dominion keeps up steady-and-sure construction of the project. It’s getting built, even as you read this…
    Read More “Despite Court Ruling, Atlantic Coast Pipeline Continues Construction”

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    PA Superior Court Rejects Southwestern “Briggs” Trespass Appeal

    An unwelcome and troubling development in the Southwestern Energy “Briggs” court case. MDN brought you important news in April that the Pennsylvania Superior Court had handed down a decision (known as the “Briggs” case) that has the power to greatly restrict, perhaps even stop, Marcellus drilling in PA (see PA Superior Court Overturns “Rule of Capture” for Marcellus Well and PA “Rule of Capture” Case has Power to Limit Marcellus Drilling). The issue, in brief, is that the Superior Court decision disallows using an age-old principle called the “rule of capture” when it comes to shale drilling and fracking. It opens the door to a myriad of frivolous lawsuits claiming that a fracture, a crack created during fracking, is draining gas from a neighbor’s property without justly compensating the neighbor for the gas. Southwestern successfully argued in a lower court that the odd crack here and there that may slip under a neighbor’s property is permissible. The landowner appealed to Superior Court and three judges heard the case. Two of the three overturned the lower court and sided with the landowner. Southwestern, following the decision, petitioned the Superior Court to have all of the sitting justices (called en banc) hear the case (see Southwestern Appeals “Trespass” Case to Entire PA Superior Court). Sadly, on Friday, the Superiors declined to rehear the case. The next step? Southwestern has appealed the case directly to the PA Supreme Court…
    Read More “PA Superior Court Rejects Southwestern “Briggs” Trespass Appeal”

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    Columbia Sues WV Landowners for Delaying Mountaineer XPress Work

    It’s one thing for a landowner (or Big Green supporter, sometimes one and the same) to oppose a pipeline project by protesting, asking politicians to get involved, writing to regulatory agencies, etc. We have a great American tradition of free speech. Go for it. But it’s quite another thing to “harass, intimidate and interfere” with work crews in an area by screaming at them and shooting your “large caliber gun” near where they’re working. Columbia Gas Transmission is currently building the Mountaineer XPress Pipeline, a $2 billion, 170-mile pipeline that will flow 2.7 billion cubic feet (Bcf) per day of natural gas from existing and future points of receipt along or near the Columbia pipeline system–most of it located in West Virginia (see Details on Columbia Pipeline Mountaineer XPress Pipeline Project). At 2.7 Bcf/d, Mountaineer XPress is the second largest (by volume) new pipeline project for the Marcellus/Utica region–second only to Rover’s 3.25 Bcf/d pipeline. It is a big and important project. And yet, a single couple whose land the pipeline does NOT cross can delay the entire project with threats and intimidation and interference. That’s the charge Columbia has made in court. On April 30, Columbia sued a couple in Doddridge County who live near an active construction site for Mountaineer XPress, claiming their hostile actions toward workers have caused a delay for the entire project–and that’s costing Columbia big bucks. Columbia wants to ask a jury to extract some of that lost revenue from the hostile couple as compensation. Lesson: Your (hostile, threatening) actions have consequences, and may cost you money…
    Read More “Columbia Sues WV Landowners for Delaying Mountaineer XPress Work”

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    Lebanon County Judge Rules ME1 is Public Utility, Pump Stn OK

    This story stretches back four years. In November 2014, MDN told you about anti-drillers in Lebanon County, PA who had succumbed to shiny object syndrome and transferred their irrational hatred of fossil fuels from the Williams Atlantic Sunrise pipeline project to the already-in-the-ground but getting repurposed Sunoco Logistics Mariner East 1 pipeline (see New Target for Lebanon, PA Antis: Mariner East Pipeline). As part of converting ME1 from an oil pipeline to flow natural gas liquids, including propane and ethane, from western PA to the Philadelphia area, some 31 pump and valve stations needed to be built–one of them in West Cornwall in Lebanon County. Three local residents and an anti-drilling group called Concerned Citizens of Lebanon County filed an appeal with the zoning board to force the town to rescind permits they granted to allow the pump station. In May 2015, the West Cornwall Township Zoning Hearing Board declared the appeal “moot”–meaning denied (see Antis’ Zoning Appeal re Mariner East Pump Stn in Lebanon “Moot”). The antis decided to throw good money after bad and appealed the matter to Lebanon County Court of Common Pleas (i.e. county court). Finally, after years, the judge in the case backed ME1 over the antis, delivering his decision earlier this week. The judge ruled that ME1 is exempt from certain local zoning restrictions because it is (yes), a “public utility.” Which should not surprise anyone. Just last week the U.S. Supreme Court said the same thing when it refused to hear an eminent domain case for ME2, a different but closely related pipeline (see U.S. Supreme Court Lets Stand Eminent Domain for ME2 Pipeline). Like ME2, ME1 is a public utility. So say all the courts…
    Read More “Lebanon County Judge Rules ME1 is Public Utility, Pump Stn OK”

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    Penn Twp Frack Ban Decision Now in Hands of Local Judge

    Last November we updated you on a lawsuit filed by a group of anti-fossil fuelers in Penn Township (Westmoreland County), PA (see Penn Twp Ninny Nannies File Lawsuit to Block Apex, H&H Wells). A group calling themselves Protect PT, backed with money and legal help from Big Green group PennFuture, filed a lawsuit to try and stop Apex Energy and Huntley & Huntley (H&H) from drilling wells in the township. A Westmoreland County judge heard some testimony in the case in April (see Penn Twp Antis Try to Use PA ERA to Block Shale Drilling). The peril with Protect PT’s lawsuit is that it uses Pennsylvania’s so-called Environmental Rights Amendment (ERA), which liberal PA judges have, in recent years, breathed new life into. The argument is that fracking denies those who live near this temporary activity their “right” to enjoy Mom Nature, therefore it should be banished forever. Protect PT is attempting to pull off a total frack ban in the Penn Township. Although the judge heard testimony in April, more was given this week. All testimony is now done and the case rests with the judge. We expect whoever loses will appeal. Below is a recap of the case and the testimony given this week…
    Read More “Penn Twp Frack Ban Decision Now in Hands of Local Judge”

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    U.S. Supreme Court Lets Stand Eminent Domain for ME2 Pipeline

    It’s been a long, tough fight to get the Mariner East 2 Pipeline (ME2) project built. In fact, it’s still not 100% built (it is about 98% done). Construction on a tiny section near Philadelphia is currently being stopped by a liberal judge (see Antis Get Lib Judge to Shut Down All Mariner East Pipes, Dems Rejoice). We expect that to be resolved soon. However, the project has been sued multiple times in different courts. One of the favored legal arguments was/is to say the project does not have the right to use the power of eminent domain to force recalcitrant landowners from accepting it. One such case, brought by a Lebanon County, PA landowner, was appealed all the way to the U.S. Supreme Court. On Monday the Supremes declined to review the case, a challenge to ME2’s ability to use eminent domain, thereby cementing a ruling by the PA Commonwealth Court that ME2 can indeed use eminent domain. Period. End of sentence. The Supreme Court ruling is just the latest in a string of rulings favoring the ME2 project. Last summer, a three-judge Commonwealth Court panel ruled in favor of ME2, upholding its status as a public utility because it will provide increased public access to energy resources like propane. Huntingdon County Common Pleas Court Judge George Zanic ruled against efforts to delay construction of ME2 after Commonwealth Court validated the utility status by dismissing an appeal. None of this is new. The court have repeatedly ruled against challenges to the state Public Utility Commission’s designation of ME2 as a public utility with  public benefits. And now, the Supremes have rendered the final word: ME2 is a public utility…
    Read More “U.S. Supreme Court Lets Stand Eminent Domain for ME2 Pipeline”

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    PA Supreme Court Rules on Gorsline Zoning Case – Mixed Decision

    Not long after the Pennsylvania legislature passed the Act 13 Marcellus Shale drilling law in 2012, signed into law by then-Gov. Tom Corbett, seven selfish towns sued, claiming they should have the right (via zoning laws) to determine just where an oil and gas well can be located within their borders. The challenge was brought by rabid anti-drillers and appealed all the way to the PA Supreme Court, where unfortunately the antis won (see PA Supreme Court Rules Against State/Drillers in Act 13 Case). What the antis didn’t think about was the fact some towns may decide to exercise their newly-won rights to allow wells, instead of prohibit them. Whoops. Guess they didn’t see that one coming. A town in Lycoming County decided to allow a shale well on property zoned residential/agricultural (i.e. farming country) by using a “conditional use” permit. Anti-drilling Big Green groups, including PennFuture, THE (arrogant) Delaware Riverkeeper, and the Peters Township gang (none of which are from mid-PA where the town is located) sued to deny the town the right to exercise its Act 13 authority to allow a shale well. The case, Brian Gorsline v. Board of Supervisors of Fairfield Township (Gorsline is an avowed anti-driller), was appealed to the PA Supreme Court and in March 2017 (over a year ago!) the Supremes heard oral arguments (see Gorsline Zoning Case Argued Before PA Supreme Court Justices). Last Friday the Supremes came down from Mt. Olympus to issue their ruling–and they ruled (4-3) against the town and for the antis. However, before you jump to any conclusions and before you believe headlines from Big Green supporters trumpeting their “victory,” you need to know this: the decision potentially makes it harder (not easier) for antis to stop drilling in the future. We’ll explain…
    Read More “PA Supreme Court Rules on Gorsline Zoning Case – Mixed Decision”