In an early test of last year’s Pennsylvania Supreme Court ruling that struck down parts of Act 13, a common pleas court judge has thrown out a conditional use permit issued by a township in Lycoming County that would have allowed drilling operations in a residential area.
For now, Judge Marc Lovecchio’s ruling effectively ends Denver-based Inflection Energy LLC’s bid to construct a well pad in Fairfield Township, which granted a conditional use permit for operations last year after the company filed for development in an area zoned for residential-agricultural use. The pad would have been within a 3,000-foot radius of a large residential development.
Homeowners in the area, though, filed an appeal to that permit, and Lovecchio sided with their concerns about truck traffic, noise and health hazards, citing last year’s Act 13 ruling in his order vacating the permit. He said the company failed to provide adequate testimony about how its oil and gas operations met the established criteria for the residential-agricultural zone and added that the constitutional right of citizens to a healthy environment can’t be violated.
“While the court understands the constraints that the [township board of supervisors] may have been operating under as a result of Act 13 and the litigation regarding its constitutionality, our Supreme Court has now ruled with respect to such. The citizens’ rights cannot be ignored and must be protected,” Lovecchio wrote in his opinion. “Neither the applicant nor the board explained how unconventional natural gas operations are compatible with permitted uses in this residential district. Furthermore, the board’s findings were not supported by substantial evidence and, in some instances, were clearly in contravention of the evidence.”
In a 4-2 ruling last December, the state Supreme Court ruled that parts of Act 13 — a sweeping piece of oil and gas legislation passed in 2012 (see Shale Daily, Feb. 15, 2012) — were unconstitutional (see Shale Daily, Dec. 20, 2013). Not only did the ruling undercut centralized regulation by returning to municipalities their right to change or enforce local zoning laws, it also no longer compelled local governments to allow natural gas operations across all zoning districts (see Shale Daily, Jan. 6; Dec. 27, 2013).
The ruling also hinged largely on a reading of Article I, Section 27 in the state’s constitution, a rare environmental rights amendment not found in many other states. It reads in part that “the people have a right to clean air, pure water, and to the preservation of the natural scenic, historic and esthetic values of the environment.”
Mark Szybist, a staff attorney at the environmental advocacy organization PennFuture, which represented Fairfield Township homeowners in their appeal, praised Lovecchio’s opinion.
“It is plain from the decision that Judge Lovecchio took extraordinary care to meticulously review the record,” he said. “His decision is a wake-up call to all municipalities that after Robinson Township, local government cannot ignore their Article I, Section 27 responsibilities.”
Robinson Township, along with six other municipalities and the Delaware Riverkeeper Network filed the challenge against Act 13.
At issue in the Fairfield Township case was whether Inflection could drill for oil and gas in a residential-agricultural zone. The company argued that it’s operations did meet such criteria and the township board of supervisors argued in court that a natural gas pad is similar to a public service facility, such as a power plant, which is permitted in or near a residential zone.
But Lovecchio wrote in his opinion that Inflection failed to prove such similarities and justify its operations near a residential area. He wrote that during testimony the company could not say with certainty how many wells would be drilled, how much water would be used, or even how long the project would last, among other things.
“This is not the typical construction situation. It is common knowledge that when an individual hires contractors to build a house or farm, the work typically is performed during daylight hours in the normal business week,” Lovecchio said. “In comparison, the construction and drilling for the proposed use involves constant, or near constant truck traffic, illumination and noise from trying to get through thousands of feet of rock formations at all hours of the day and night, seven days a week until the well is completed.”
It wasn’t immediately clear on Thursday if the company will appeal the common pleas court decision or modify its former development plan and apply for a new application. When asked about the court’s ruling, an Inflection representative said there would be no comment until the company had finished preparing a statement it was working on.
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