Municipalities Organize for Lawsuit Challenging State

A group of municipal leaders is considering challenging a state law that overturns local control of zoning related to natural gas drilling. The grassroots collection of local officials is looking to challenge the recently passed Pennsylvania House Bill 1950, which will charge natural gas drillers a per well fee, but which also largely removes the right of municipal leaders to enact zoning regulations on hydraulic fracturing or “fracking” for natural gas.

Last year, Forest Hills borough and the city of Pittsburgh passed laws prohibiting fracking, but under the new state law signed by Gov. Tom Corbett on Feb. 13, those regulations must be changed to comply with the state law.

Peters Township leaders spent years developing regulations on natural gas drilling, but the new law essentially trashes them. That doesn’t sit well with David Ball, a Peters councilman. Ball, along with Cecil Township supervisor Andrew Schrader and Robinson Township supervisor Brian Coppola, recently led a gathering of local officials that was held on Feb. 22 in Monroeville. At the meeting Ball, a metallurgical engineer, gave a summary to local leaders on HB 1950: “Regardless of what state politicians said, it does pre-empt local zoning control. It’s a one-size-fits-all state ordinance. The problem is, the requirements in our township are not the same as in others,” he said.

The three leaders of this fight represent the gamut of municipalities that are affected by the new state law. While Peters is suburban, with some open space, Cecil is a mix of open space and developed areas, and Robinson (in Washington County), is rural, with a lot of open space and some drilling activity. Despite their differences, leaders of the three municipalities share a concern that’s growing among municipalities in the Commonwealth—their inability to create laws that effectively govern natural gas drilling in their municipalities.

“The new law takes away a township’s ability to control where drilling takes place. It also makes it virtually impossible for the community planning of a township to occur,” Ball said. “Peters spent 2½ years developing a drilling ordinance that is specific to 40-acre sites. Now, you have to allow drilling anywhere.”

In many municipalities, there is a concern for parks, schools, home values and the quality of life of residents and business owners and workers. At the Feb. 22 meeting, officials from Monroeville, Murrysville, Lower Burrell and Forest Hills attended. Ball personally is not opposed to natural gas drilling, but Forest Hills Mayor Marty O’Malley, who attended the Monroeville meeting, is no fan. Though he didn’t vote on it, O’Malley favors the fracking ban that Forest Hills Council unanimously approved. The small borough, an eastern suburb outside Pittsburgh, soon will be in violation of state law unless it rescinds its anti-fracking ordinance. From the time of the enactment of the new state law, municipalities have just 120 days to change their zoning to comply with it.

“A number of township solicitors are trying to determine if there’s a legal strategy to fight it. If so, we’ll pursue it,” Ball said.

If it is fought, the legal battle should be a straightforward legal case in which municipalities will be arguing that the legislation passed by the state—and written by the drilling companies’ lawyers—violates the Pennsylvania Constitution, O’Malley said. “The state constitution mandates that elected officials are constitutionally bound to protect the water, the land and the air… We want 40 municipalities [involved in the lawsuit], not just four,” he said.

O’Malley has recommended that Forest Hills Council support the effort, which could cost the borough $1,000 to $2,000 to start.

Ball is opposed to laws that remove the rights of local leaders to regulate natural gas drilling. The new law allows natural gas compressor stations to be built 750 feet from a residential area, but the facilities operate around the clock and make a lot of noise, Ball said.

“I think drilling should be done in the right place and be done safely. I also think townships should retain the zoning control to determine where and how drilling is done,” Ball said.

The Peters councilman gave the state legislature more of a break than O’Malley, saying he believes politicians were misinformed on the bill and told by their leaders what was in the fracking legislation. But overturning his municipality's laws does smart.

“I worked very hard to develop a reasonable ordinance to control drilling… As councilmen, we have an obligation to protect the health, safety and welfare of the community. The state law took away control of what happens in our own township—including setbacks, hours of operation, pipelines, compressor stations and seismic testing,” Ball said.