by James A. Pardo and Brandon H. Barnes
Pennsylvania Towns Challenge State Legislation Preempting Local Bans on Hydraulic Fracturing
Last month, the Pennsylvania Legislature passed HB 1950, putting into place comprehensive new rules for hydraulic fracturing activity in the state. Among the new rules are strict limits (akin to those proposed in New York) on where new wells can be located. Citing the need for statewide uniformity to ensure the most efficient development of oil and gas resources, and consistent environmental protections for all residents, the legislature also declared that all local ordinances — including local zoning rules — must allow for reasonable development of oil and gas resources consistent with the new legislation. In short, HB 1950 preempts all stricter local zoning ordinances, including any ordinances that might seek to totally ban hydraulic fracturing.
The preemption provisions of HB 1950 quickly came under fire from environmental and community groups. The controversy escalated last week when seven Pennsylvania towns – joined by Delaware Riverkeeper – filed suit challenging the provisions as an unconstitutional stripping of the towns’ power to zone and a denial of their ability to carry out their constitutional obligation to protect public natural resources. That case, Robinson Township et al. v. Commonwealth of Pennsylvania et al. (No. 284-MD-2012) is pending in the Commonwealth Court in Harrisburg.
The use of local zoning ordinances to ban hydraulic fracturing is contentious in neighboring New York – where two such ordinances recently withstood legal challenge and are now headed for appellate court review. How the challenges are resolved is important since local zoning ordinances have the potential to create a difficult "patchwork quilt" of regulations with which oil and gas explorers and developers would have to comply.
Coalition to Oppose Hydraulic Fracturing in Empire State
An eclectic mix of organizations are coordinating and working together on hydraulic fracturing (fracing), last week several groups announced the formation of a coalition — "New Yorkers Against Fracking" — to organize their efforts in the Empire State. The coalition is led by several anti-fracing groups historically active in New York: Food & Water Watch; Water Defense; Catskill Mountainkeeper; and United for Action (David Braun). The coalition has received initial funding from Sandra Steingraber, the biologist and environmental writer who recently won the Heinz Award for her work on how chemical contaminants in air, water and food endanger human health. Steingraber is donating her $100,000 prize to the group.
The coaltion’s stated goal is to achieve an outright ban on fracing, suggesting that it will not seek to work with New York State Department of Environmental Conservation (NYSDEC) to bolster the fracing rules that the agency expects to finalize this year. This is an uphill battle in New York, where all indications are that Governor Cuomo and NYSDEC intend to allow fracing, albeit subject to the nation’s strictest regulations. Not surprisingly, the more mainstream "national" NGOs (e.g., Sierra Club, Natural Resources Defense Council) — which largely have resisted pursuing unlikely bans [...]