State's Gas Drilling Law Ruled Unconstitutional

A state court panel on Thursday threw out portions of Pennsylvania's new natural gas drilling law as unconstitutional.

Act 13, otherwise known as the Marcellus Shale drilling law, implemented an impact fee and required municipalities to change their local zoning rules on gas drilling.

The Commonwealth Court panel ruled that the state cannot remove that local control from local officials.

The 54-page opinion filed by President Judge Dan Pellegrini said that requiring local officials to change their zoning "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."

An order attached to the decision declares the zoning provision "unconstitutional and null and void," and blocks the state from enforcing it.

The lawsuit was filed in March by a group of petitioners that included Bucks County municipalities Nockamixon Township and Yardley Borough. Representatives from the environmental group the Delaware Riverkeeper Network, some western Pennsylvania municipalities, and a medical doctor also joined the lawsuit.

Doylestown Borough Council recently voted to throw its moral support behind the petition but did not officially join in the litigation.

Attorney Jordan Yeager, who is the solicitor for Nockamixon Township and Yardley Borough, was heavily involved in the lawsuit.

"It’s a huge, huge win for local democracy," said Yeager, an attorney with the Doylestown firm of Curtin & Heefner. "The state legislators and the governor who approved Act 13 had really just gone too far and had given over to the gas industry too much, and the court recognized that. It’s a significant win for folks all around the state."

Maya van Rossum, the Delaware Riverkeeper, said the environmental group challenged the law in court "to petition for fairness."

"This court decision did what the Legislature and the Commonwealth’s government did not do – recognize that municipalities need to act to protect their residents and that under the Law we have a right to that protection and will fight for it. This decision proves the fight is well worth it,” van Rossum said in a statement.

Yeager said he expects Thursday's decision to be appealed to the state Supreme Court, a challenge which would have to be filed with 30 days.

More than 300 leases of land for gas drilling have been signed by property owners in Nockamixon Township in Upper Bucks County alone, Yeager said. But drilling can't begin in Bucks County until the Delaware River Basin Commission issues its rules for drilling within its boundaries, Yeager said.

Meanwhile, gas drilling already underway in other parts of Pennsylvania can continue, he said, because those permits were issued under the municipalities' existing zoning ordinances.

"This decision doesn't halt gas drilling at all. The natural gas industry has been able to grow in the state under the existing set of rules," Yeager said. "What they were trying to do was to plow over municipalities that were trying to limit where they could go, like preschools are limited, like churches are limited, like all other land uses are limited. They wanted to get out from under that.

"The court said you can’t go that far."

Act 13 was signed into law by Gov. Tom Corbett on Feb. 14, 2012.

It had passed the Senate by a vote of 31 to 19; local senators Chuck McIlhinney, Tommy Tomlinson and Stewart Greenleaf, all Republicans, voted in favor.

It passed the House by a vote of 101 to 90; local representatives Marguerite Quinn, Bernie O'Neill, Kathy Watson, Paul Clymer, Scott Petri, Tom Murt, Todd Stephens, Kate Harper, Bob Godshall, all Republicans, voted in favor.

Democrat Steve Santarsiero, who represents the Newtown area, voted against.

Click here to read the full court opinion.