A Pennsylvania township has filed lawsuit against its county board of elections, arguing that a referendum put forth by an environmental group that would ban hydraulic fracturing (fracking) in the township violates several state laws and could expose the municipality to legal action by the industry and others.
William Johnson — solicitor for Peters Township, a wealthy Pittsburgh suburb on the northern edge of Washington County — filed a petition Tuesday in Washington County Court of Common Pleas seeking an injunction over the referendum question being on the Nov. 8 ballot.
The environmental group, Peters Township Marcellus Shale Awareness (PTMSA), drafted the proposed referendum and reportedly collected 2,422 signatures to have it appear on the ballot. 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.
“We think that it’s illegal on multiple grounds,” Johnson told NGI’s Shale Daily on Wednesday, adding that PTMSA’s proposal would violate the state Oil & Gas Act, the Home Rule and Optional Plans Law and the township’s planning code. “We also believe it would be unconstitutional because it would deprive property owners of a property right without any compensation. We’re asking the court not to put it on the ballot.”
On its website, PTMSA counters that the group “understands the right of our neighbors to profit from the resources within their property boundaries. However, that right does not preempt our rights and the rights of our children to clean water and air as well as the peaceful enjoyment of our own homes and property. We believe that the long-term risks with shale gas extraction far outweigh any short-term economic gains.”
Judge Paul Pozonsky has scheduled a Sept. 28 hearing for oral arguments on the matter. The Pittsburgh Post-Gazette reported Tuesday that Pozonsky said he would try to make a decision about the referendum before the first week in October, when absentee ballots for the election will be printed.
“Efforts like these to ban the responsible development of clean-burning American natural gas from the Marcellus Shale are misguided,” Marcellus Shale Coalition President Kathryn Klaber said. “[They] fundamentally discount the fact that oil and natural gas development activities in the Commonwealth are regulated at the state, not local or municipal, level.”
On Aug. 8 the Peters Township Council adopted a 22-page mineral extraction ordinance, which 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.
“After much effort we passed what we thought was an ordinance that would allow drilling in some reasonable areas,” Johnson said. “[PTMSA] doesn’t think we went far enough. I don’t suppose anything would satisfy them other than an outright prohibition. But we think we went as far as the current state of the law permits us to do so.”
Johnson added, “I’m sure both sides are trying in good faith to do what they think is best for the township. It’s just that we don’t believe we can legally amend our charter so as to prohibit oil and gas exploration in the township, which is something the state permits.”
Peters Township Councilman Gary Stiegel Jr. told NGI’s Shale Daily that he received an email from a landowner in July threatening to sue the township if the referendum were placed on the ballot and ultimately passes. Stiegel said the landowner, whom he did not identify, claimed the initiative violated the state constitution and would qualify as a de facto taking of oil and gas rights, which the landowner estimated to be worth several million dollars.
“That’s a pretty significant budget buster,” Stiegel said Wednesday. “I imagine that there are other landowners in the township thinking the same thing. We’re very concerned about the financial exposure that this puts the township in.”
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