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Pennsylvania Judge Delays Portions of Marcellus Law

A Pennsylvania judge last week pushed back the start date for portions of a recently passed Marcellus Shale law to give local governments more time to adopt its standardized zoning measures, but his ruling questioned the idea that the entire law is unconstitutional.

The ruling was an early victory for the municipalities that brought the case against Act 13, but it did not address their ultimate goal of having those zoning measures contained in the law tossed. The omnibus shale law imposes an impact fee on unconventional gas drilling, enhances environmental legislation and restricts local zoning powers. It was originally scheduled to take effect last Saturday, but after hearing testimony Judge Keith B. Quigley pushed the effective date of a portion of the measure back about three months.

Robinson Township, Township of Nockamixon, South Fayette Township, Peters Township, Cecil Township, Mt. Please Township and the Borough of Yardley brought the lawsuit with the Delaware Riverkeeper Network, a few township officials and a doctor from Monroeville, PA (see NGI, April 2). Although the lawsuit is is directed at the state, a collection of industry groups is asking to intervene into the case. A hearing for that request is scheduled for Tuesday (April 17).

The seven municipalities that brought the case in Commonwealth Court in Harrisburg, PA, asked for a temporary injunction to get more time to update their zoning codes to comply with Act 13 and to challenge the constitutionality of those provisions in court. The municipalities said the 120-day window to amend their zoning codes after the law went into effect would create a period without set regulations. Quigley essentially agreed, saying the municipalities needed time to change their zoning laws without having to worry that oil and gas operations in the meantime would be inconsistent with those laws in the future.

"The court agrees with petitioners that 120 days is not sufficient time to allow for amendments of local ordinances," Quigley wrote.

In a filing before the hearing, the state's attorneys had argued that the municipalities couldn't challenge the law because they didn't have the authority to override state rules on land use. A brief filed by the Commonwealth last Tuesday argued that the municipalities in the lawsuit had not shown how they would be harmed if the law went into effect. It described their legal claims as "nothing more than a broad criticism of the [law's] scope and effectiveness, rather than examples of unconstitutional actions."

The hearing kicked off a larger case concerning the constitutionality of Act 13. Generally speaking, the municipalities claim that Act 13 created predictability for the gas industry at the expense of the general health and safety of the public, making it in violation of the state and federal constitutional laws protecting the public well being.

In a footnote, though, Quigley wrote that "the court is not convinced that the petitioner's likelihood of success on the merits is high."

Following Quigley's ruling to delay a portion of the law, the Marcellus Shale Coalition (MSC) said, "While it remains very early in the judicial review process, we remain confident that the legal merits of this law -- aimed at ensuring the safe and responsible development of clean-burning American natural gas in the Commonwealth -- will be recognized and upheld accordingly."

The state has claimed that uniformity will allow for better enforcement of environmental protections because it has more expertise and resources than local jurisdictions.

The remainder of the law still was scheduled to take effect on Saturday, and the court's decision did not push back the Monday (April 16) deadline for Pennsylvania counties to adopt an impact fee on unconventional gas drilling, something all but one of the eligible counties had chosen to do as of Friday.

Commissioners in Bradford County, PA -- one of the state's most prolific drilling areas -- joined all but one of their contemporaries in the Marcellus Shale and voted unanimously Thursday in favor of implementing the law. Only Luzerne County tabled its decision until Monday, according to the County Commissioners Association of Pennsylvania, which has kept a tally of the 37 counties classified as having significant shale gas resources and scheduled to vote to implement the impact fee.

"Act 13 is a completely flawed piece of legislation," Bradford County Commissioner Doug McLinko told NGI. "I don't fault the [Gov. Tom] Corbett administration. They threw it in our laps and said, 'here, you folks figure it out.' Not one of our state [elected officials] had a town hall meeting to educate local municipal officials -- in the most drilled upon county in the state of Pennsylvania -- on what [the law] was."

Bradford Commissioner Daryl Miller also told NGI that he reluctantly supported the measure. "Personally, I still have reservations about it," he said. "It's increasing taxes and increasing the size of government, which are fundamentally objectionable to me. That being said, when you're handed lemons, the best thing you do is maybe try to make lemonade out of it."

If all eligible counties adopt the fee, the state estimates that the program would bring in about $180 million this year and revenue would climb to $211 million in 2013 and $264 million in 2014. Bradford County, which accounts for nearly one-quarter of all drilling in the state, could net $50 million by some estimates.

Pennsylvania House Speaker Sam Smith (R-Punxsutawney) accused opponents of shale gas drilling of spreading misinformation about Act 13, calling their claims that the law's language on chemical disclosure would prevent doctors from treating their patients "outrageous."

"Doctors will be able to provide all of the information needed to discuss any patient ailment," Smith said. "It is outrageous to think, let alone for anyone to portray, that the state would actually 'gag' a doctor in treating a patient. It is irresponsible for an organization to try and create such hysteria."

At issue are portions of Section 3222 of Act 13 that list the circumstances where disclosure of the chemicals used in fracking are required and not required.

The Chesapeake Bay Foundation and the Pennsylvania Environmental Council (PEC) both said they supported the language contained in HB 1950 before it was signed into law by Corbett and became Act 13 in February (see NGI, Feb. 13a; Feb 13b). Smith said the law was modeled on similar legislation used in Colorado.

"The new law explicitly requires fracking chemical information be disclosed to medical professionals so that they may provide treatment should the need ever arise," Smith said. "It is designed for transparency and access, and it provides unfettered access to physicians or other medical professionals who need information to treat their patients."

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