Thursday, July 26, 2012

We won!! Portions of Act 13 are Unconstitutional!

Kudos and a special "THANK YOU" to the outstanding lawyers (John Smith, Susan Kraham, Jordan Yeager, and Jonathan Kamin) who took on the Goliath gas companies and won! Also a big thanks to Rep. Jesse White for his unrelenting efforts to overturn  Act 13. The brave petitioners are:

Robinson Township, Washington : County, Pennsylvania, Brian Coppola, :
Individually and in his Official : Capacity as Supervisor of Robinson :
Township, Township of Nockamixon, : Bucks County, Pennsylvania, :
Township of South Fayette, : Allegheny County, Pennsylvania, :
Peters Township, Washington : County, Pennsylvania, David M. Ball, :
Individually and in his Official : Capacity as Councilman of Peters :
Township, Township of Cecil, : Washington County, Pennsylvania, :
Mount Pleasant Township, : Washington County, Pennsylvania, :
Borough of Yardley, Bucks County, : Pennsylvania, Delaware Riverkeeper :
Network, Maya Van Rossum, : the Delaware Riverkeeper, :
Mehernosh Khan, M.D., :

Jesse White reports:
“Never doubt that a small group of thoughtful, committed citizens can change the world; indeed, it’s the only thing that ever has.”
Those words ring very true today. In a 4-3 opinion, the PA Commonwealth Court sided with the people and local communities of Pennsylvania by striking down large portions of Act 13, a law passed in February which severely restricted the ability of local communities to deal with natural gas drilling in the Marcellus Shale.
The full opinion can be found at:
Tim Puko's Tribune Review Article ( July27, 2012):

Commonwealth Court strikes some provisions of state’s new gas drilling law
A Marcellus shale drilling site in Cecil Township, Washington County. Sidney Davis | Tribune-Review

About Timothy Puko
Tribune-Review Staff reporter Timothy Puko can be reached via e-mail or at 412-320-7991.

By Timothy Puko

Published: Thursday, July 26, 2012, 11:26 a.m.Updated 10 hours ago

Parts of the state’s new oil and gas law unconstitutionally limit local governments’ ability to keep gas drilling rigs and waste pits away from homes, schools and parks, a divided state appeals court ruled on Thursday in a decision the Corbett administration likely will appeal.
A 4-3 majority of the Commonwealth Court judges who heard the case sided with leaders from Pittsburgh-area suburbs who challenged the legality of Act 13. The court struck down portions of the law, which established fees and uniform land-use rules to regulate the burgeoning Marcellus shale gas. The legal challenge focused on the issue of local control.
“This doesn’t mandate that drilling isn’t going to happen within their (townships’) borders. It just puts back the balance of what’s existed since the Marcellus (drilling) started,” said John M. Smith, the plaintiffs’ lead attorney and solicitor for Cecil and Robinson in Washington County.
South Fayette, Mt. Pleasant and Peters also challenged the law.
“If you want to build a shed in our townships, you’re probably going to need a permit from us. And we just wanted (drillers) to be treated like everybody else,” Smith said.
The decision was a defeat for the gas industry and Republican Gov. Tom Corbett, whose office said it likely would appeal the ruling to the state Supreme Court.
“Act 13 is clearly constitutional and received significant input and ultimate support from Pennsylvania’s local government associations and their legal counsel,” said Corbett spokesman Eric Shirk. “We will vigorously defend this law.”
The court agreed with four of 12 complaints, including the lead claim that state lawmakers violated the state and federal constitutions. The judges dismissed lesser claims that became irrelevant once they ruled to uphold local land-use control, several plaintiffs said. Judges dismissed separate challenges to eminent domain provisions for pipelines and to laws that govern the information drillers give to doctors, saying the plaintiffs did not have standing.
The new law requires “municipalities to violate their comprehensive plans for growth and development,” President Judge Dan Pellegrini, a Democrat, wrote for the majority. It “violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications” by allowing industrial work under industrial standards in residential areas.
“This is a wonderful victory for local government, a recognition that local municipal officials have a valid interest in protecting the property of their citizens,” said Jordan Yeager, one of the lawyers who argued on behalf of the municipalities. “Act 13 took that away, and the court said that the governor and the Legislature had gone too far.”
Lawyers for several defendants did not return requests for comment or referred questions to the Marcellus Shale Coalition, a Cecil-based drilling industry group. The state needs to standardize rules, the group’s leader wrote in an emailed statement.
“The premise for the General Assembly’s action earlier this year was to provide certainty and predictability that encourages investment and job creation across the commonwealth,” coalition President Kathryn Z. Klaber said. “Lack of uniformity has long been an Achilles’ heel for Pennsylvania and must be resolved if the commonwealth is to remain a leader in responsible American natural gas development and reap the associated economic, environmental and national security benefits.”
Pennsylvania municipalities cannot oversee any environmental issues at well sites — that’s the state’s job — but have long had control over land-use decisions. Many communities were moving to tighten those rules, requiring drillers to meet more conditions on noise, light and traffic at work sites before they’re able to get permission to drill, especially in residential areas.
Supporters in state government pushed to limit local control and standardize the rules for drillers in all 2,000 municipalities statewide. Lawmakers passed Act 13 in February. It included some restrictions, including a prohibition on drill pads within 300 feet of homes without a waiver from residents.
Those restrictions showed the state tried to balance local health and safety needs with the right for gas owners and drillers to do business, Judge P. Kevin Brobson wrote in an all-Republican minority opinion.
The rule “does not, as the majority suggests, eviscerate local land use planning,” he wrote. “It does not give carte blanche to the oil and gas industry to ignore local zoning ordinances and engage in oil and gas operations anywhere it wishes.”
Pellegrini was joined by the other Democrat on the panel, Bernard McGinley, and two Republicans, Patricia McCullough and Bonnie Brigance Leadbetter. Judges Robert Simpson and Anne E. Covey joined Brobson in the minority. They dissented on only three counts, all related to land-use and local control.
“I’m very pleased with the decision,” said David Ball, a Peters councilman who is among the plaintiffs. “We won the important parts of the case.”
The judges agreed that one new rule gave too much power to the state Department of Environmental Protection. The ruling means DEP will not be allowed to waive setbacks for drilling in some environmentally sensitive areas.
The department referred comment to Corbett’s office.
Timothy Puko is a staff writer for Trib Total Media. He can be reached at 412-320-7991 or Staff writer Jeremy Boren and The Associated Press contributed to this report.


A Commonwealth court panel this morning threw out Pennsylvania's attempt to establish statewide zoning for Marcellus shale drilling. The court ruled that the state cannot take away zoning control away from local municipalities as it tried to do when the Legislature passed Act 13 in February.
Steve Hvozdovich
Clean Water Action
Marcellus Shale Policy Associate
State Court Strikes Down Portions of New Marcellus Shale Law
The Pennsylvania Commonwealth Court issued its opinion Thursday morning—calling the local zoning provisions of Act 13 unconstitutional.
The state Commonwealth Court on Thursday struck down portions of Pennsylvania’s newly enacted legislation governing Marcellus Shale operations—also known as Act 13—and declared them unconstitutional.
The 54-page opinion filed by President Judge Dan Pellegrini stated:
“Petitioners allege that they have close to 150 unconventional Marcellus Shale wells drilled within their borders, and Act 13 prevents them from fulfilling their constitutional and statutory obligations to protect the health, safety and welfare of their citizens, as well as public natural resources from the industrial activity of oil and gas drilling. Petitioners allege that Act 13 requires them to modify many of their zoning laws.”
The petitioners, which included a cluster of local communities including Cecil and Peters, an environmental group and a medical doctor, had asked the court to throw out portions of the zoning regulations under Act—and it did.
“We grant petitioners’ Motion for Summary Relief, declare 58 Pa C.S. §3304 unconstitutional and null and void, and permanently enjoin the Commonwealth from enforcing it,” the order read.
Reached Thursday morning, Cecil solicitor John Smith—who handled the challenge—said: “I think it’s a great day for local government and a great day for Pennsylvania.”
The attorney added, “Our system of checks and balances worked. The Legislature overstepped, and the court did its job declaring portions of Act 13 as unconstitutional.”
Cecil Township supervisor Andy Schrader, who was a proponent of the challenge, said, “I think the whole purpose of this challenge was to protect our residents and with this ruling, it will give us some legal standing under our zoning laws to do that. That’s what this was all about for me.”
State Rep. Jesse White, D-Cecil, who vehemently opposed portions of Act 13, said, “This is obviously a huge victory for those of us who want to see Marcellus Shale developed responsibly. Hopefully now we can stop the bullying and the buying of influence and truly work together to develop a responsible approach that will allow development of Marcellus Shale while creating a culture of true accountability and responsibility. Today’s decision reaffirms that our constitutional protections are not for sale.”

This story was published originally on Canon-McMillan Patch.

Post Gazette
Post Gazette: THURSDAY, 26 JULY 2012 09:50

HARRISBURG -- A ruling issued this morning by a panel of Commonwealth Court judges throws out a set of zoning restrictions approved in Act 13, the state's new shale gas drilling law.

That law, signed by Gov. Tom Corbett in February, enacted a sweeping set of changes for how the oil and gas drilling industry operates within Pennsylvania, including creating an impact fee and, most controversially, dictating what municipalities can and cannot include in their zoning standards for gas drilling.
A lawsuit was filed in March, challenging the zoning provision primarily, arguing that the new law prevented local officials from protecting the health and safety of their residents.
An order attached to this morning's filing declares the zoning provision null and void. A separate provision that allows state environmental officials to waive setback requirements for gas wells also is overturned.
The majority opinion states that requiring municipalities to change their zoning rules in a way that would conflict with their development plans "violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications – irrational because it requires municipalities to allow all zones, drilling operations and impoundments, gas compressor stations, storage and use of explosives in all zoning districts, and applies industrial criteria to restrictions on height of structures, screening and fencing, lighting and noise."
"If a municipality cannot constitutionally include allowing oil and gas operations, it is no more constitutional just because the Commonwealth requires that it be done," the opinion states.
A dissent was released from three members of the court panel -- Judges Kevin Brobson, Robert Simpson and Anne Covey -- arguing that the municipalities challenging the law failed to make their constitutional claim.
The ruling comes a little more than three months after another state appellate judge granted a 120-day injunction to prevent the zoning section of the law from going into effect in mid-April.
Seven municipalities -- including the southwestern towns of Cecil, Peters, South Fayette, Mt. Pleasant and Robinson, plus two towns in Bucks County -- filed the lawsuit, along with a Monroeville doctor and environmental activists from the Delaware Riverkeeper Network.
Canonsburg attorney John Smith, one of several attorneys representing the municipalities in the lawsuit, argued during a June en banc hearing that allowing drilling activities in areas the state proscribed will make it difficult for local governments to protect their residents, and that the statute allows the drilling industry privileges in permitting and land use that others do not have.
State lawyers replied that municipalities do not have a constitutionally protected right to zoning, and that those powers can be altered by the Legislature as they see fit.
A spokesman for the state attorney general's office, which defended the commonwealth in the lawsuit, could not immediately be reached for comment.


Here is the complete court ruling: