In a “major victory” for environmental activists, Pennsylvania’s Commonwealth Court last week struck down crucial parts of the state’s controversial Act 13, thus restoring zoning authority over natural gas drilling to local governments, which had contested the five-month-old law. Among other provisions intended to assist energy companies in pursuing fracking, Act 13 preempted local zoning ordinances to allow fracking operations anywhere, including areas zoned residential.

 

In fracking, energy companies use powerful pumps to force a pressurized mix of water and chemicals into deep layers of rock like shale, causing fractures there, which allow the extraction of otherwise unavailable natural gas. Although the mix is about 99% water, the remaining 1% includes highly toxic chemicals, including methanol, hydrofluoric acid, sulfuric acid, and formaldehyde. Fracking, which has been going on in Pennsylvania for about a decade, has already caused serious environmental problems there, most notably in Dimock Township, where fracking operations that began in 2006 have contaminated the water so badly that the U.S. Environmental Protection Agency (EPA) has been supplying clean water to residents at taxpayer expense.

 

On a 4 to 3 vote, the Commonwealth Court declared the law’s zoning section “unconstitutional, null and void,” for the reason that it “violates substantive due process because it does not protect the interests of neighboring property owners from harm, alters the character of neighborhoods and makes irrational classifications.” Rejecting the state’s argument that uniformity of statewide drilling standards justifies overriding local zoning control, the court observed that, “If the Commonwealth-proffered reasons are sufficient, then the Legislature could make similar findings requiring coal portals, tipples, washing plants, limestone and coal strip mines, steel mills, industrial chicken farms, rendering plants and firework plants in residential zones,” concluding that “It would allow the proverbial ‘pig in the parlor instead of the barnyard,’” meaning an otherwise proper thing in an improper place.

 

The Marcellus Shale Coalition, an industry trade group that spent nearly $1 million lobbying for Act 13 in just three months earlier this year, said in a statement that “Lack of uniformity has long been an Achilles heel for Pennsylvania and must be resolved if the Commonwealth is to remain a leader in responsible American natural gas development and reap the associated economic, environmental and national security benefits.”

 

Other sections of Act 13 remain intact, including a new “impact fee” for drillers of gas wells. Republican Governor Tom Corbett, who enthusiastically pushed the bill and signed it into law in February, announced Friday that his office would appeal the ruling to the Pennsylvania Supreme Court.

 

-Matt Bewig

Parts of Pa. Law Favored by Frackers Overturned (by Alice Su, Center for Public Integrity)

Robinson Township, et al. v. Commonwealth of Pennsylvania (Pa. Commonwealth Court)

Pennsylvania Republicans Protect Suburbs from Fracking, but Give Go-Ahead in Rural Counties (by Matt Bewig, AllGov)