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Pennsylvania Township Could Be Sued Over Proposed Fracking Ban

A Pennsylvania judge said he would try to render a decision by Friday (Oct. 7) over whether a controversial referendum banning hydraulic fracturing (fracking) should be placed on the November ballot in Peters Township.

But during a hearing Wednesday in the Washington County Court of Common Pleas, Judge Paul Pozonsky also warned that he thought the township -- a wealthy Pittsburgh suburb on the county's northern edge -- could face multiple lawsuits from companies and landowners if voters were to ever ultimately pass such a referendum.

"I don't want to be presumptuous, but I think the judge clearly agrees that what is being proposed is illegal on numerous grounds," Peters Township Solicitor William Johnson told NGI's Shale Daily on Friday. "But I think he's having serious concerns about his authority to hear the case at this point. He seemed to be wrestling with whether the court has jurisdiction to intercede into an election that has not yet occurred."

Johnson filed a petition on the township's behalf in September, seeking an injunction over the referendum question being on the ballot (see Shale Daily, Sept. 15). An environmental group, Peters Township Marcellus Shale Awareness (PTMSA), drafted the proposed referendum. It asks voters if the township's home rule charter should be amended to include a "Peters Township Bill of Rights," which would enact an outright ban on fracking in the township.

Johnson and the township argue the referendum is illegal on several grounds, including the state Oil & Gas Act, the Home Rule and Optional Plans Law and the township's planning code.

"Our argument is that the result is going to be clearly illegal, so why not stop it now?" Johnson said. "The flip side of that is the argument that the court shouldn't interfere with the legislative or the electoral process midstream. If this thing passes and then it's challenged, the court can certainly declare it to be illegal at that point."

Johnson said Pozonsky told the courtroom he would try to decide if the referendum itself posed a threat to the township. The judge said he may not be able to consider the long-term consequences of a fracking ban, which he predicted would raise the ire of people who have signed or want to sign Marcellus Shale drilling contracts.

"The hearing on Wednesday went about as well as we could have expected," PTMSA spokesman Rod Fletcher said on the group's website. "Judge Pozonsky has not yet decided in our favor, but his line of questioning was dead on and to the point."

Fletcher praised the job Jules Lobel -- an attorney and professor at the University of Pittsburgh School of Law -- did in oral arguments supporting the PTMSA's position on Wednesday. "Jules was able to clearly differentiate between prior case law where an injunction was ruled in favor of -- always that the mere placement of the question on the ballot had a causal effect of immediate damage -- and our situation in Peters," Fletcher said. "Bill Johnson was not able to counter with any claim for immediate damage to the township.

"I think we have a much better than even chance of winning a favorable judgment."

Pozonsky needs to make a ruling soon so absentee ballots can be printed.

On Aug. 8 the Peters Township Council adopted a 22-page mineral extraction ordinance that set guidelines over where drilling could occur and required oil and gas companies to obtain a conditional use permit. Among the permitting requirements, applicants could not drill on parcels smaller than 40 acres and water and soil testing would need to be performed before and after drilling. Applicants would also submit transportation, road bonding and emergency plans with the township.

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