Monday, December 23, 2013

PA Supreme Court Knocks Down Bullying Act 13 But Will The Gas Industry Double Down?

Ever since Governor Corbett was elected, whatever the gas industry wanted it received.  One timeless lesson of the remarkable decision by the Pennsylvania Supreme Court is to be careful for what you ask.

That is a lesson that the gas industry forgot in 2011, when it used its political muscle and Governor Corbett's unquestioning support, to ram through the Pennsylvania General Assembly Act 13. The gas industry got what it asked for and showed that it preferred to bully state government than be a good neighbor in municipalities across Pennsylvania.

The question now becomes, will the gas industry double down on its bully tactics and jam through another state law?  Early indications are that it is likely to  do just that!

Or will the gas industry head in a different direction that works with local governments, land owners, lease holders, and even those who experience negative impacts from gas drilling? This path requires more work, more restraint, more respect for the diversity of opinion across Pennsylvania. Working with neighbors means correcting mistakes without the need for suits, installing pollution controls that are the best, even when they cost a bit more in the short run, not drilling in some locations, and paying a drilling tax.

The gas industry must choose whether it will be the neighborhood bully. Attacking zoning once more will be doubling down on bully laws.

Paradoxically, the fact that the Governor will give the gas industry whatever it wants creates a trap for the industry itself. So far, the industry has consistently showed that it cannot discipline itself to be careful for what it asks. The temptation is just too great and over-reach is the result.

The ball is now back in the gas industry's court. Will it be more bully ball? If so, opposition to the gas industry, already significant, will rise and intensify. Be careful for what one asks!


  1. Act 13 greatly increased minimum setbacks, overhauled a plethora of other environmental regulations, increased well construction standards, and instituted an impact fee that has cost the industry nearly half a billion dollars in the first two years of its existence? It was a sweeping piece of legislation that built very nicely on those regulatory updates (rightly) put in place by the previous administration's DEP secretary. It was not in any way, shape, or form a handout to the drillers. Nor was it rammed down anyone's throats. It was supported by a multitude or groups, including (if I remember correctly) the statewide groups representing township supervisors and county commissioners. It was opposed by the minority, which seems to be par for the course no matter the issue in politics today.

    Our social contract is with the people of the Commonwealth, not municipal leaders. You make a consistent zoning standard sound like a license to operate with impunity. In those few townships where companies and officials have been feuding it could certainly look like a power grab, but for most of the state it removed the removed the burden of overseeing the siting and certain other aspects of drilling from the municipalities. Most supervisors are ill equipped to do so (despite their best intentions and efforts) and many happily recognize this and didn't want the responsibility to begin with. Instead, Act 13 placed this responsibility with the DEP, which is who regulates everything else about gas drilling and has the expert staff and resources to do it. And it made one consistent set of regulations (we can argue over whether they are tough enough) which we have to abide by across the state. It was also a large benefit to the many townships that have no zoning.

    I sincerely hope this ruling does not open Pandora's box. This ruling gives municipal administrators, most of whom are volunteers (or may as well be) and some of whom win election with vote counts in the double digits, the power to take people's property rights unilaterally and without appeal. There needs to be some bargain struck here. Maybe this first try was too much for the benefit of the industry, but giving townships carte blanche to kick drillers off of the properties of hundreds of private property owners who want them there...based on little to no reasoning other than "gas wells are bad"..... could be that the pendulum has swung too far in the other direction.

    1. Townships that choose to zone do not have carte blanche in writing zoning ordinances. Zoning ordinances must meet the requirements of the Municipal Planning Code and the Code limits zoning power of townships. That was true before Act 13 and is true after Act 13 being declared unconstitutional. Act 13 radically changed the old rule that townships could separate industrial activity from residential areas. That old rule is now restored. And 50% of townships choose not to zone at all.

    2. There is plenty enough leeway operating inside the bounds of the MPC to install defacto drilling bans. There are also conflicts with the state's Oil & Gas Conservation law, which pretty much states that it is illegal to leave gas stranded in the ground in a wasteful manner.

      While natural gas drilling is an industrial activity, its a temporary activity. Ever watch a housing development being built? Dozers, excavators, graders, chainsaws, bonfires, concrete pumpers, dump trucks, water trucks, big diesel powered flatbed trucks hauling things in and out. Noise, smells, banging, traffic. Very much an industrial activity. It's a disruption. It's an annoyance. It's an eyesore. Progress almost always is. We don't gasp when someone wants to build a housing plan next to a school, a hospital, a playground, or another housing plan.

      Once the work is done and everything is put back as it was and the grass grows back and the equipment moves along, the houses sit silently and unobtrusively, doing their job. I don't see how gas wells are any different. Compressor stations, treatment plants, large open air impoundments...that's a different story.

  2. The MPC has for decades limited zoning powers, and the PA courts have responsibly resolved cases involving disputes about zoning powers. The Supreme Court decision returns us to what had worked for decades that have included coal mining, timbering, oil and gas drilling and much more in PA. Now industrial activity is very different from a housing development. Chemical plants blow up...Texas. Oil rail cars blow up and kill 60 people sleeping in their houses (very bad zoning). Industrial activity has a level of on-going risk that separates it from a housing development.

    1. I'm not saying that zoning doesn't play a very important role, like I said permanent installations are one thing. We shouldn't be putting industrial plants next to schools (my elementary school playground abutted a drainage pond for the tire manufacturing plant right next door). I am solely talking about gas wells. The Marcellus Shale industry is a unique industry, with a unique benefit and opportunity, and challenges. Companies wanting a consistent regulatory framework is not unreasonable. Left to their own devices they could be far too liberal with where they choose to locate things, but on the flip side townships could be far too conservative. Both sides are extremely biased. I think having DEP act as the impartial expert on such matters is a great idea, and I bet it wouldn't seem like such a power grab or a gift to the gas industry if there were...let's just say...a very environmentally minded and energy wise Democrat in running things in Harrisburg. Watching companies and townships beat each other up in court while wasting massive amounts of taxpayer money and creating even more ill-will between industry and the public will benefit few other than attorneys and anti-fracking activists.