Local officials retain some power over drilling

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Local officials retain some power over drilling

BY ELIZABETH SKRAPITS (STAFF WRITER)
Published: August 9, 2010

When it comes to regulating natural gas drilling, the state Oil and Gas Act trumps local ordinances – mostly.

As is the case with methadone clinics and adult entertainment venues, municipalities and counties can’t keep natural gas wells out altogether. But local officials do have some power, such as the ability to limit wells to agricultural, manufacturing or industrial zones and bar them in residential districts.

“We – local land use authorities – can regulate the ‘where;’ we cannot regulate the ‘how.’ That power, to regulate the ‘how’ of natural gas drilling, rests entirely with the Commonwealth of Pennsylvania,” Luzerne County Zoning Hearing Board Chairman Larry Newman said after last week’s hearing on granting Encana Oil & Gas USA Inc. conditional use to drill 10 natural gas wells in Lake and Fairmount townships.

Municipal and county planning and zoning authorities do have some say in the matter of natural gas drilling in their communities, state officials say.

“They’re not completely pre-empted by any means under state law,” Department of Environmental Protection Secretary John Hanger said. “They do have a role.”

Drilling processes, techniques and materials are beyond the power of local zoning authorities, Hanger said. For example, a zoning hearing board cannot tell a natural gas company what kind of cement can be used in a well casing, he said. Instead, the Oil and Gas Act gives DEP the authority to set drilling standards.

Denny Puko of the state Department of Community and Economic Development said the Oil and Gas Act generally not only pre-empts local regulations of any type except for the Municipalities Planning Code and the Flood Plain Act, but goes a step further: although municipalities and counties can do things under those two statutes, they can’t regulate what the Oil and Gas Act regulates.

“They’re limited,” he said. “You can see there’s not a whole lot of room.”

But legal precedents are being set which can change that.

Puko cited three state court cases that clarified what counties and municipalities can and can’t do when it comes to natural gas drilling: Huntley & Huntley vs. Oakmont Borough; Penneco Oil Co. and Range Resources vs. the County of Fayette; and Range Resources vs. Salem Township (Westmoreland County).

In the often-cited 2007 Huntley vs. Oakmont case, Huntley & Huntley sought to drill a natural gas well in a residential subdivision in Oakmont Borough. Borough council denied the company.

The upshot of the case was the Supreme Court unanimously ruled that while the conditional use permit had been improperly denied, companies cannot drill in areas where zoning ordinances do not allow them. The more recent Penneco case is similar in nature.

In the Range Resources vs. Salem Township decision, the court ruled that the township’s ordinance overlapped and in some cases was more stringent than the Oil and Gas Act, making it “an attempt by the Township to enact a comprehensive regulatory scheme relative to oil and gas development within the municipality.”

Unlike in Huntley vs. Oakmont, which was about the “where” of natural gas drilling, Salem Township was trying to regulate the “how.” The court ruled against the township.

“It’s kind of narrow what a municipality can do, according to the court precedent,” Puko said. “I guess at this point, municipalities are left to interpret the law with their municipal solicitors, and act accordingly.”

The court cases are leading zoning officials and solicitors through what Attorney Jeffrey Malak calls “new, uncharted waters.”

Malak, who not only works with property on natural gas leases but also serves as the solicitor for several entities including the Back Mountain Community Partnership, has been researching the subject on behalf of the six member municipalities.

According to Malak, there are numerous provisions municipalities can try to get into their zoning ordinances, including:

• Locating wells in certain zoning districts with permission (conditional use).
• Keeping wells certain distances from occupied structures, public streets, roadways or lot lines.
• Screening, buffering and fencing requirements.
• Bonding the natural gas company to ensure responsibility for road maintenance and repair.

Ordinances to regulate dust, noise and light pollution are also possibilities.

However, Malak noted, “Just because we put it in the zoning ordinance doesn’t mean that it’s valid.”

In one of the municipalities where Malak serves as solicitor, Dallas Borough, the zoning ordinance – which is available at www.dallasborough.org – restricts natural gas well drilling to industrial zones and highway business districts. It has requirements including that drilling cannot take place within 200 feet of any occupied structure or 100 feet of any stream, spring or wetland.

The 100-foot setback from water is a DEP regulation, but municipalities can include that and other state requirements in their zoning ordinances, Malak said.

“It’s a lot of referencing state laws: ‘Hey, the state has this, we’re going to put this in too,'” he said.

As more cases and appeals make it through the state courts, they will give further guidance to municipalities, landowners and gas companies on what is permissible and what isn’t, Malak said.

“It’s an evolving field of law,” he said.

eskrapits@citizensvoice.com, 570-821-2072