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Pennsylvania High Court Strikes Down Part of Fracking Law

Pennsylvania’s high court struck down part of a law aimed at easing natural gas development in the Marcellus Shale formation, saying provisions of the measure violate the state’s constitution.

The state Supreme Court ruled 4-2 yesterday that Act 13, signed by Governor Tom Corbett last year, unconstitutionally restricted the power of municipalities to govern gas drilling in their jurisdictions.

Pennsylvania’s Constitution guarantees citizens’ rights “to clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment,” the court concluded. The fracking-regulation statute would empower state officials to “act contrary to this right,” the court’s majority said.

The legislation was the first comprehensive rewrite of Pennsylvania’s oil and gas laws since 1984, Corbett said last year. The new measures, backed by the booming gas industry, set statewide standards for drilling while prohibiting separate local zoning requirements on those companies.

This court challenge was closely watched in the industry because Pennsylvania is the fastest-growing natural gas producer and fights over local control have emerged in other states, including New York.

Advocacy Group

Seven municipalities and the Delaware Riverkeeper Network, an environmental advocacy group, sued to block implementation of the law. They argued the measure usurped their authority without giving time to pass appropriate zoning laws. Critics argued that the law eliminates local zoning and allows industrial operations within feet of residential buildings, hospitals or schools.

Commonwealth Court Judge Keith Quigley sided with the townships in April 2012 and ruled that preexisting ordinances must remain in effect. He allowed other parts of the law to be enforced.

“Economic development cannot take place at the expense of an unreasonable degradation of the environment,” the Supreme Court said in its ruling.

Pennsylvania is the country’s fastest growing natural gas producer with production up 72 percent in 2012 from a year earlier due to the use of hydraulic fracturing to tap the Marcellus Shale, the U.S. Energy Information Administration said this week.

Gas Industry

The formation, which lies beneath parts of Pennsylvania, New York, Ohio, Maryland, Virginia and West Virginia, has an estimated 400 trillion cubic feet of natural gas, one of the largest such formations in the world, trade associations have said. The gas industry called yesterday’s decision a disappointment.

The decision “represents a missed opportunity to establish a standard set of rules governing the responsible development and operation of shale gas wells in Pennsylvania,” Dave Spigelmyer, the president of the Marcellus Shale Coalition, a Pittsburgh-based industry advocacy group, said in a statement.

Corbett, a Republican, said the court’s decision “invalidated some key provisions of Act 13.”

“We are continuing to review today’s decision,” Corbett said yesterday in a statement. “Act 13 was a bipartisan accomplishment between the administration and members of the General Assembly, which raised the bar on environmental protection standards while respecting the rights of local governments.”

‘Maximally Favorable’

The court’s majority found that contrary to what the law’s supporters say, the “purpose of the statute is to provide a maximally favorable environment for industry operators to exploit Pennsylvania’s oil and natural gas resources.”

The legislation puts municipalities in direct conflict of their duties of environmental protection, the court said while detailing the history of the state’s environmental laws and the deterioration of its natural resources. Optimal accommodation of the gas industry in the context of Act 13 implicates “resources essential to life, health and liberty” including surface and ground water and air, the court wrote.

Development “of the natural gas industry in the Commonwealth unquestionably has and will have a lasting, and undeniably detrimental, impact on the quality of these core aspects of Pennsylvania’s environment,” the court said in its ruling.

‘Sweeping Victory’

The ruling is a “sweeping victory” for the law’s opponents, said Jesse White, a Democratic member of the Pennsylvania House of Representatives and opponent of the measure.

“This cements the ability of towns to dictate how oil and gas development will take place in their community, rather than allowing the industry to do it,” White said in an interview.

The court’s ruling could have a broader impact on the fight against all aspects of drilling, Tracy Carluccio, deputy director of the Delaware RiverKeeper Network, said in an interview. The advocacy group has called for a moratorium on drilling in the state citing health and environmental concerns.

“This could be a turning point and a watershed moment for the people of Pennsylvania,” Carluccio said. “It’s thrilling to see the court taking a strong stance for the environment.

The case is Robinson Township v. Commonwealth of Pennsylvania, 63 MAP 2012, Supreme Court of Pennsylvania Middle District (Harrisburg)

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