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Mar 07

2/16/12 New shale regulation may prompt lawsuit – Attorney John Smith quoted

New shale regulation may prompt lawsuit

Municipalities want return of local authority to determine locations of gas wells

Thursday, February 16, 2012

By Janice Crompton, Pittsburgh Post-Gazette

On the same evening that Gov. Tom Corbett signed legislation that will overhaul the Marcellus Shale gas drilling industry and curtail local control, several municipalities in Washington County began bracing for a potential court challenge.

At township meetings Monday, Peters council members and Robinson supervisors asked their solicitors to review HB1950 and to prepare a joint legal response, which could include input from Cecil officials.

“They say it’s not pre-emptive, but it is pre-emptive,” said Peters Councilman David Ball about the bill, passed by the state House on Feb. 8, one day after it cleared the state Senate. “Personally, I’m unhappy with the way it was ramrodded through.”

The new law establishes an annual fee for gas drillers based on the price of natural gas and — most importantly to local government officials– it strips municipalities of most of their authority in determining where gas wells and related infrastructure, such as pipelines and compressor stations, should be located.

The law will replace local zoning regulations already in place in dozens of local municipalities with state guidelines.

Mr. Ball said he went to Harrisburg last week and met “eyeball to eyeball” with Lt. Gov. Jim Cawley, local legislators and executive council members of the Pennsylvania State Association of Township Supervisors, during the two-day debate.

“I was on the phone all day with people when they were on the floor,” he said of lawmakers.

But, his lobbying seemed to have little effect, Mr. Ball said, especially after what he termed a “milquetoast” response by the township supervisors association to the legislation.

“We lose 15 ways to Sunday,” said Mr. Ball, who wants the township to withdraw as a member of the association, saying membership in the organization was “a waste of money.”

Councilman Robert Atkison agreed.

“That’s a joke,” he said of the association. “They’re just another Harrisburg bureaucracy.”

Peters, Robinson and Cecil officials were among the more than 200 local government representatives from 44 municipalities in seven counties who met late last year to express their frustration with proposed legislation that would curb local control over shale drilling.

Again this week, some of the same officials said they were disappointed that even their local legislative delegation, including state Sen. John Pippy, R-Moon, and state Rep. John Maher, R-Upper St. Clair, could not be counted on to vote against the bill.

Mr. Atkison said he tried to contact Mr. Maher after the vote to express his displeasure.

“He didn’t call me back, and I’m not surprised,” Mr. Atkison said.

Under the new law, municipalities with conflicting ordinances, such as Peters, Cecil and Robinson, would have 120 days to amend their drilling regulations to reflect new state laws.

If municipalities don’t make the necessary adjustments, they could lose out on impact fees and be forced to pay legal fees for drilling companies.

The state Public Utility Commission has been charged with overseeing local regulations to ensure that they comply with new state laws.

An ordinance passed in August in Peters limits gas wells to sites with at least 40 acres. It is chief among the regulations expected to change there.

Though the law signed by Mr. Corbett this week limits drilling in densely populated areas, provisions for suburban areas like Peters are less stringent, with requirements that wells be only 500 feet from any house.

John Smith, solicitor for Robinson and Cecil, said he believes both of his townships will have to make major changes to comply with the new state law.

“Almost everything will need to be addressed according to my reading of the House bill,” he said. “You almost have to throw everything out.”

He expects to begin making legal recommendations to the municipalities within 30 days. Those could include asking the courts to delay enactment of the law — which is set to take effect in 60 days — until challenges can be ironed out.

“The clock is ticking now,” Mr. Smith said.

It’s also possible that multiple municipalities, and perhaps even counties, will join to mount a legal challenge, he said.

“Obviously, you don’t want to have 100 municipalities filing 100 lawsuits,” he said. “They want to see if they can join forces.”

Though he sees a potential legal battle as an “uphill fight” against the state, Mr. Smith said it’s possible that the new law may conflict with a statutory requirement that local officials “protect the health, safety and welfare of their communities.”

“That’s why they have zoning powers,” he said.

The feeling is the same in Peters, where members of the citizens group Peters Township Marcellus Shale Awareness on Monday pledged to support council members despite a disagreement last year, when the group unsuccessfully sought to ban drilling on constitutional grounds.

“We’re not giving up, believe me,” Mr. Ball said. “It’s unconscionable that they should pre-empt our zoning laws. We do need to have zoning authority and we’re going to work on getting it back.”

Janice Crompton: jcrompton@post-gazette.com or 412-851-1867.

First published on February 16, 2012 at 5:40 am

Permanent link to this article: http://smithbutzlaw.com/21612-new-shale-regulation-may-prompt-lawsuit-attorney-john-smith-quoted/