Permit applications for shale gas wells within one mile of a Washington County school: Withdrawn.

In October 2014, citizens from Mt. Pleasant Township in Washington County reached out to PennFuture for assistance. Range Resources had submitted three conditional use permit applications to the township board for consideration. The permits, if approved, would allow Range to develop three new natural gas well pads and accessory facilities, two of which would join an already existing well pad, placing three within one mile of the Fort Cherry K-12 school campus. PennFuture provided legal counsel at four well-attended public hearings and was preparing testimony for several more when Range abruptly pulled the applications on Tuesday, February 3, citing economic reasons. 

Washington County is a drilling hot spot in Pennsylvania, with wells popping up across all zoned districts, including in county parks, and by homes and schools. Some residents are fed up with this unchecked expansion, which allows gas development anywhere in the township. Several nearby permit violations by Range Resources, along with heavy truck traffic, around-the-clock noise from generators, and bright lights in an otherwise pastoral setting, prompted a group of citizens to ask that the township deny the approvals that would allow these industrial operations in close proximity to homes and schools - and particularly in areas where persons bought homes in reliance on the area being zoned for only residential development.

In addition to quality of life considerations, residents opposed the permits based on concerns related to a growing body of research documenting the health risks associated with the drilling process. Health professionals and parents alike argue that concentrating diesel truck traffic around families and their homes makes no sense. Diesel exhaust is a known carcinogen as well as an air pollutant linked to a variety of respiratory and heart diseases. Studies such as one conducted in 2014 by McKenzie, et al. revealed that pregnant mothers living within ten miles of natural gas wells had higher incidences of congenital heart diseases in their children. Furthermore, the risk of certain birth defects was positively correlated with increased well density. 

As research continues to reveal real risks, citizens are beginning to look to their local governments for appropriate zoning restrictions on natural gas drilling. 

Mt. Pleasant Township modified its land use ordinance to allow natural gas development across all zoned districts prior to enactment of the state natural gas law (Act 13). In the recent Robinson Township case, the Pennsylvania Supreme Court struck down those portions of Act 13 that compelled local municipalities to allow natural gas development across all zoned districts. Mt. Pleasant Township is now in the process of revising its land use ordinance.

In deciding where to permit drilling and where to restrict it, Mt. Pleasant Township faces the same challenge as many municipalities around Pennsylvania: how to strike a balance between shale gas development and protection of the environment and the public’s health and safety. When ruling on components of Act 13 pertaining to local zoning, as set forth in Robinson Township, the Supreme Court made it clear that municipalities cannot allow non-conforming uses in residentially zoned districts – and it goes without saying that shale gas development is not a residential land use.

Valessa Souter-Kline is western Pennsylvania outreach coordinator for PennFuture and is based in Pittsburgh. She tweets @ValessaSK.

PennFuture scores big victory for local governments and citizens rights

On Friday, Judge Marc F. Lovecchio of the Court of Common Pleas of Lycoming County decided in favor of local residents by vacating and setting aside a conditional use permit that would have allowed Inflection Energy, LLC to build and operate an unconventional shale gas pad in the middle of a residential neighborhood in Fairfield Township. The case is believed to be the first decision testing the role of local government to regulate natural gas developments in the post-Robinson Township world. 

For the uninitiated, the Supreme Court in Robinson Township relied on Pennsylvania’s Environmental Rights Amendment to strike down portions of the state's Oil and Gas Law (Act 13), which compelled local government to allow gas operations across all zoning districts, including residential districts.  Otherwise, the state threatened to penalize local governments by withholding any "impact fees" intended to address harm caused to local communities by the industry. I know, nice guys.

In this case, Inflection applied for a conditional use permit for its proposed gas well pad.  A number of residents spoke out against the well pad before the Fairfield Township Board of Supervisors, testifying to concerns about air pollution, noise pollution, light pollution, traffic congestion, and the impact of the operations on their property values and general well-being. The company introduced the testimony of two witnesses, neither of whom were experts in land-use matters. Often, their testimony consisted of nothing but conclusions, such as that the operations were compatible with existing uses authorized for residential districts, without any explanation of how the witness reached those conclusions.

On appeal, PennFuture made three arguments: (1) that the language of the ordinance expressly authorized gas operations in the industrial zoned district, and it was therefore inappropriate to use a conditional use permit to allow it in the residential zoned district; (2) that the township's decision was not supported by substantial evidence on the record; and (3) that the township had violated the residents' substantive due process rights and failed to comply with its obligations under Article I, Section 27 by authorizing the gas well operation in the middle of a residential neighborhood.

The Township and Company argued that the citizens had waived their rights to raise their various challenges, that the Township properly used its conditional use process, that the Township's findings were supported by substantial evidence, and that no constitutional violations were committed.

Even though the Court "saw merit" in PennFuture's first argument, Judge Lovecchio rejected the idea that the ordinance expressly allowed gas operations only in industrial districts. Instead, the Court vacated the conditional use permit on the basis that the Township's findings were not supported by substantial evidence. The Court stated that the company failed to provide the Township with any evidence to support the conclusion that the proposed use was similar and compatible, while the citizens had “presented substantial evidence that there is a high degree of probability that the use will adversely affect the health, welfare and safety of the neighborhood."

Deciding the case on the basis of substantial evidence relieved the Court of the need to address PennFuture's constitutional arguments. Nonetheless, the Court made plain that the Township had an obligation to protect the constitutional rights guaranteed to its citizens under Article I, Section 27 of the Pennsylvania Constitution. The rights of citizens to a healthy environment, the Court said, "cannot be ignored and must be protected.” 

In so ruling, the Court adopted both the rationale and express language of the Supreme Court's decision in Robinson Township.

The case is Gorsline et al. v. the Board of Supervisors of Fairfield Township and Inflection Energy, LLC et al.  The full opinion can be found here.

George Jugovic, Jr. is chief counsel for PennFuture and is based in Pittsburgh.