What You Need To Know About The Act 13 Hearing

Scott Detrow          StateIm­pact Pennsylvania / NPR      April  12, 2012

This morn­ing, Pennsylvania’s Com­mon­wealth Court will hear argu­ments in a law­suit aimed at stop­ping Pennsylvania’s new nat­ural gas drilling impact fee from tak­ing effect. Here’s what you need to know about the case.

Dozens of local offi­cials spoke out against the impact fees at a Decem­ber meet­ing in Allegheny County

The Play­ers:   Seven munic­i­pal­i­ties from three coun­ties have filed the law­suit, along with the Delaware River­keeper Net­work and a doc­tor named Mehernosh Kahn. The municipalities:

•Robin­son Town­ship, Wash­ing­ton County

•South Fayette Town­ship, Allegheny County

•Peters Town­ship, Wash­ing­ton County

•Cecil Town­ship, Wash­ing­ton County

•Mount Pleas­ant Town­ship, Wash­ing­ton County

•Yard­ley Bor­ough, Bucks County

•Nock­amixon Town­ship, Bucks County

The group is suing the Com­mon­wealth of Penn­syl­va­nia, as well as three depart­ments who will play one role or another in enforc­ing the new law:

•The Pub­lic Util­ity Commission

•Office of the Attor­ney General

•Depart­ment of Envi­ron­men­tal Protection

The Argu­ment:

The new impact fee restricts munic­i­pal­i­ties’ abil­ity to zone and reg­u­late nat­ural gas drilling. It bars local gov­ern­ments from keep­ing nat­ural gas wells out of res­i­den­tial zones, except for dense neigh­bor­hoods. The bill also imposes new statewide stan­dards for where wells, com­pres­sor sta­tions and other drilling-related struc­tures can be built. The leg­is­la­tion requires local drilling reg­u­la­tions to be “rea­son­able,” and has tapped the Pub­lic Util­ity Com­mis­sion as the arbiter of whether or not munic­i­pal­i­ties’ rules fit within that definition.

The law­suit claims Gov­er­nor Cor­bett and the Gen­eral Assem­bly vio­lated both the state and fed­eral con­sti­tu­tion by enact­ing the impact fee, which is offi­cially called Act 13. Why’s that? The suit points out the state con­sti­tu­tion says Pennsylvania’s laws must be “designed to pro­tect the health, safety and wel­fare of the com­mu­nity.” This leg­is­la­tion, it argues, was passed in order to cre­ate a more com­pet­i­tive eco­nomic envi­ron­ment for nat­ural gas drillers, by elim­i­nat­ing municipality-to-municipality zon­ing disparities.

Here’s a pas­sage from the filing:

By craft­ing a sin­gle set of statewide zon­ing rules applic­a­ble to oil and gas drilling through­out the Com­mon­wealth, the Penn­syl­va­nia Gen­eral Assem­bly pro­vided much sought-after pre­dictabil­ity for the oil and gas devel­op­ment indus­try. How­ever, it did so at the expense of the pre­dictabil­ity afforded to Peti­tion­ers and the cit­i­zens of Penn­syl­va­nia whose health, safety and wel­fare com­mu­nity devel­op­ment objec­tives, zon­ing dis­tricts and con­cerns regard­ing prop­erty val­ues were pushed aside to ele­vate the inter­ests of out-of-state oil and gas companies …”

The suit goes on to list neg­a­tive con­se­quences of drilling: chem­i­cal spills, com­pres­sor sta­tion fires, con­ges­tion on road­ways and other impacts.

Other argu­ments raised by the law­suit include:

  • The law’s restric­tions on doc­tors’ abil­ity to dis­close chem­i­cals used dur­ing hydraulic frac­tur­ing “strips” med­ical pro­fes­sion­als of “their abil­ity to pro­vide com­pe­tent care.” (This is the rea­son Doc­tor Kahn joined the suit.)
  • When a driller chal­lenges a municipality’s zon­ing in front of Com­mon­wealth Court or the Pub­lic Util­ity Com­mis­sion, the hearing’s loser may be required to pay both sides’ legal fees. The suit claims this is “exces­sively onerous.”
  • The law impedes on local con­trol estab­lished by the Munic­i­pal Plan­ning Code.

The Coun­ter­ar­gu­ment:

Gov­er­nor Corbett’s office has told the AP they’re “con­fi­dent that courts will uphold the law.”

The Cor­bett Admin­is­tra­tion is famously tight-lipped, and prefers to make its argu­ments behind the scenes. Gov­er­nor Corbett’s view of Act 13’s local zon­ing restric­tions are out in the open, though, in the form of a let­ter he sent to leg­is­la­tors in the days lead­ing up to the final impact fee vote. In the let­ter, Cor­bett argues the leg­is­la­tion does not pre­empt local drilling reg­u­la­tions, or unfairly boost drilling.

Rather, the gov­er­nor views the leg­is­la­tion as pro­tec­tion against munic­i­pal ordi­nances designed specif­i­cally to drive out drillers. “The most restric­tive of these ordi­nances com­pletely bans nat­ural gas drilling or an activ­ity crit­i­cally related to the devel­op­ment process, depriv­ing cit­i­zens of jobs, income and the enjoy­ment of their own prop­erty rights,“ he writes. Cor­bett argues the law “rec­og­nizes and pre­serves the tra­di­tional role of local zon­ing, and pro­vides for a fair and impar­tial review of ordi­nances to make sure they are consistent…”

Cor­bett does con­cede the leg­is­la­tion is aimed at ben­e­fit­ing the drilling indus­try, but what oppo­nents call favoritism he calls eco­nomic strat­egy. “To our imme­di­ate north, west and south­west, our neigh­bor­ing states have all adapted strong – and in some cases total – pre-emption of local ordi­nances gov­ern­ing oil and gas devel­op­ment,” he writes. “With­out ques­tion, we must ensure that Penn­syl­va­nia regains its com­pet­i­tive edge if we are to grow and suc­ceed in the future.”

Read More:

Look­ing for more con­text?   Here are StateIm­pact Pennsylvania’s most rel­e­vant arti­cles on the impact fee and the pro­vi­sions in question:Key mile­stones to look for, as the law goes into effect


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