American Oil and Gas Reporter - July 2015 - 171

nia has more than 2,500 municipalities, PIOGA members expressed concern about
a patchwork of assorted local requirements
as the Marcellus play expanded.
As a result, PIOGA strongly supported the local ordinance provisions in legislation that became Act 13 of 2012. A
comprehensive rewrite of the Oil and
Gas Act, the law set statewide standards
for local regulation of oil and gas activities to ensure consistency for the industry
and provide a method for challenging questionable ordinances.
A group of municipalities quickly challenged Act 13 in Robinson Township v.
Commonwealth, and when the Supreme
Court issued its decision in December
2013, the result was fractured and confusing. Three justices concurred with the full
162-page decision, another justice concurred
but wrote his own lengthy opinion and two
other justices authored dissents. Portions of
the law were sent back to the Commonwealth Court for further consideration.
In a section that struck down the law's
municipal regulation sections, one justice
argued that the provisions violated due
process rights and three others contended
that the provisions violated the Pennsylvania Constitution's Environmental Rights
Amendment. The ERA states: "The people have a right to clean air, pure water, and
to the preservation of the natural, scenic,
historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the
people, including generations yet to come.
As trustee of these resources, the commonwealth shall conserve and maintain them
for the benefit of all the people."
Commonwealth Court rejected the
municipalities' arguments about the ERA's
applicability, explains Babst Calland attorneys Blaine Lucas, Krista-Ann Staley
and Lawrence Baumiller in the January
2014 edition of The PIOGA Press. However, the top court's plurality decision
spends 98 pages making the case for
how the 1971 constitutional amendment
relates to Act 13. Then-Chief Justice
Ronald Castile, author of the opinion, cited the "inevitable" environmental harms
caused by oil and gas development and
opined that the municipal provisions "are
incompatible with the commonwealth's
duty as trustee of Pennsylvania's public resources."
A New Challenge
Opponents of natural gas development
have begun citing Robinson Township's use
of the ERA in their local zoning ordinance
challenges, write Staley and Lucas in the
April PIOGA Press. The Babst Calland attorneys observe it is an ironic twist that antiindustry residents and environmental

groups are using a decision that invalidated statewide standardized land use control
and restored local control to now challenge
the validity of local ordinances.
At least five such challenges have been
attempted, the authors note. Plaintiffs challenging local ordinances generally argue that
Robinson Township obliges each municipality to conduct substantial environmental and safety analysis before enacting oil
and gas regulations or issuing permits.
One common argument among the
challenges is that the local governing
body's environmental due diligence is insufficient to enact oil and gas land use regulations that satisfy the municipality's duty
under the ERA and Robinson Township.
"However, given the ambiguity in the
Robinson plurality opinion, there is not
consistency among the challenging parties
as to the scope of pre-enactment due diligence necessary to satisfy the ERA,"
Staley and Lucas write.
The challengers also frequently argue
that the regulations inadequately protect natural resources and the environment, and that
ensuring adequate environmental protection
under ERA and Robinson Township requires municipalities to engage in their own
environmental analyses on an applicationby-application basis. The Babst Calland authors observe, though, that the challengers
making this argument "generally view the
local regulations in a vacuum, disregarding
extensive state and federal regulatory, permitting and enforcement regimes."
Some ordinance challengers also contend that oil and gas development is incompatible with residential and agricultural
uses, so allowing such disparate uses to coexist amounts to illegal spot zoning. Others have challenged ordinance provisions
similar to sections of Act 13 that have been
stricken, such as minimum setback requirements.
Staley and Lucas also find it noteworthy that the challengers have maintained
their positions despite clear statements in
Commonwealth Court's 2015 decision in
Pennsylvania Environmental Defense
Foundation v. Commonwealth that the
Robinson decision is not binding precedent, but merely persuasive authority "to
the extent it is consistent with binding
precedent from the (Commonwealth)
court and the Supreme Court on the same
subject."
Encouraging Signs
Among the five western Pennsylvania
cases Staley and Lucas cite, all challenges thus far have been unsuccessful. In
New Sewickley Township, Beaver County, the owners of an organic farm challenged the validity of the zoning ordinance
in September 2014 after the township ap-

proved a conditional use permit for a compressor station next to their property. After one evening's testimony before the zoning hearing board, the challengers withdrew their case before the second night's
scheduled proceedings.
Two of the three supervisors in Washington County's Robinson Township were
voted out of office after the township initiated its Act 13 challenge, and the new
board revised the municipality's zoning ordinance with language less antagonistic toward the industry. The new ordinance was
challenged last September by a group of
residents, and the township and a producer operating in the municipality countered
that the challengers lacked standing. A second validity challenge was filed, this
time to contest a particular well pad's approval. The zoning hearing board voted to
deny both challenges and the decision was
appealed to the county court of common
pleas in February, where it is pending.
In Middlesex Township, Butler County, four residents, the Clean Air Council
of Philadelphia and the Delaware Riverkeeper Network challenged the township's zoning ordinance and the issuance
of a well permit. The zoning hearing
board heard testimony for nine evenings
from November into March. In May, the
board voted to deny the challenge.
"At the end of the day, our fiduciary responsibility as zoning board members is
to protect our residents," the zoning board
chairman told a Pittsburgh newspaper. "If
we as the board felt this particular issue
was detrimental to the residents of this
township, we would have ruled that way."
The Delaware Riverkeeper Network
and Clean Air Council, with two of the
four original challengers, filed an appeal
in the county court of common pleas. The
zoning hearing board in Allegheny Township also voted to deny a challenge to that
Westmoreland County municipality's ordinance and a well pad approval. The
board heard testimony for three evenings
in January and February before a March
MATT BENSON has served for five
years as director of internal communications for the Pennsylvania Independent Oil & Gas Association, and is
responsible for PIOGA's monthly
newsletter, weekly electronic newsletter, website and other member-oriented communications. He has more than
three decades' experience writing and
editing for membership associations and
trade publications, and has covered the
oil and gas industry for much of that
time. He holds a B.S. in journalism from
Pennylvania State University.
JULY 2015 171

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