2011-11-24 / Features

Pa. Tries To Avert Fights Between Towns, Drillers

By MARC LEVY
ASSOCIATED PRESS

HARRISBURG, Pa. (AP) – For several years now, Pennsylvania’s booming natural gas industry has been pressing lawmakers to bring order to the myriad of local ordinances governing drilling in the commonwealth.

The Legislature has done little to update state laws that never envisioned such deep horizontal drilling that produces millions of gallons of polluted wastewater and has sent rigs to parts of Pennsylvania with no experience with drilling.

If lawmakers do nothing else, they at least seem to have agreed on a way that supporters hope will avert legal clashes between municipalities and drilling companies: The House and Senate, both controlled by Republicans, in recent days have each passed legislation that would preserve but limit the ability of municipalities to control drilling activity.

The provision, which was nearly identical in the two separate bills, isn’t law yet: It was tucked into otherwise substantially different House and Senate bills that each addressed a wide range of issues around the industry’s pursuit of gas in the Marcellus Shale, believed to be the nation’s largest natural gas reservoir.

Working out the differences will take the chambers weeks, if not months – and not everybody is happy with the legislation. Even Gov. Tom Corbett, a Republican who is viewed as a staunch ally of the drilling industry, went to bat for the strongest alternative favoring the industry while pointing out that Ohio is trying to lure the industry with a law that completely pre-empts any local regulation.

But the provision on local ordinances, developed by Senate President Pro Tempore Joe Scarnati, R-Jefferson, at least has the support of a majority in each chamber as well as grudging support from some representatives of local governments and the industry.

“We would like to have more local control over the industry, as far as zoning and that kind of stuff, but we have to be realistic that we can’t only have as much as we would like to get,’’ said Elam Herr of the Pennsylvania State Association of Township Supervisors. “What’s there today is workable and agreeable.’’

Representatives of two industry groups, Associated Petroleum Industries of Pennsylvania and the Independent Oil & Gas Association of Pennsylvania, said they were still studying the proposal.

The Marcellus Shale Coalition and one of the state’s most active drillers, Chesapeake Energy Corp. of Oklahoma City, both said they could accept Scarnati’s provision.

Kathryn Klaber, president of the Marcellus Shale Coalition, said that while her organization preferred the stronger pre-emption provision originally in the House Bill and backed by Corbett, the Senate’s provision “reflects a reasonable compromise that will address many of the difficulties that have plagued our industry regarding local zoning for the past several years.’’

It may be the best they get. Support among Republican lawmakers for complete pre-emption – which is the law in Ohio – is lacking, while Democrats and environmental groups such as Clean Water Action have attacked Scarnati’s proposal. House Democratic Whip Michael Hanna, D-Clinton, told colleagues during floor arguments Thursday that it “usurps the authority of our local governments that protect and preserve the quality of life, while giving the oil and gas drillers an early Christmas.’’

The proposal would require a municipality to allow oil and gas operations in all parts of a municipality, including in residential zones. Drilling and water impoundments would have to be allowed as close as 300 feet from a home or school, but a municipality could place the same limitations on drilling that it was allowed to place on construction activity. The state attorney general would become the arbiter and enforcer of the standard in an effort to limit court battles.

The alternative was three paragraphs in the House bill that Herr and others said would have completely erased any ability of municipal governments to enforce any ordinance that affected the drilling industry – possibly even invalidating longstanding regulations or agreements that deal with the industry.

That concept is what the industry and Corbett say Ohio Gov. John Kasich is wielding as an attraction for exploration companies as he works to drum up interest in the Utica Shale, a lesser-explored layer of rock that geologists nonetheless believe could produce enormous amounts of natural gas.

In a letter to lawmakers Monday, Corbett backed the idea of complete pre-emption. But during floor debate on Tuesday, the House voted to remove the tougher preemption provision and replace it with a provision nearly identical to Scarnati’s.

Some proponents of complete pre-emption, including Corbett, suggest that that was the original intent of a 1984 state law that has been eroded over time by court decisions giving local governments some latitude to regulate drilling activity.

Those decisions have left what some lawyers say is a legal gray area. If the Legislature doesn’t act, it’s possible that the state Supreme Court will grant what industry lawyers view as even more latitude. A petition in another such case, this time involving Fayette County ordinances, has been awaiting the court’s review for 13 months.

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