September 11, 2008

Municipalities Argue for Local Say in Drilling

By Brian Bowling

Telling companies they can't drill gas wells near streams and buildings doesn't give them "carte blanche" to drill everywhere else, an attorney for Oakmont told the state Supreme Court Tuesday.

Borough attorney Clifford Levine said a Commonwealth Court interpretation of when state laws supersede local laws would "obliterate" local zoning of any state-regulated industry or even activities such as using manure to fertilize land. State law bans that within 100 feet of a stream.

By the lower court's reasoning -- which echoes that of the oil and gas industry -- that state restriction means that otherwise "you can put manure wherever you want it to go and the local government has no say," Levine told the seven justices.

Patricia Dodge, an attorney for a local drilling company, said that's a flawed example because the state oil and gas law goes further than other state laws in blocking local regulations. Seeking "optimal development" of the state's oil and gas resources, the General Assembly wrote the law to keep the state's more than 2,400 local governments out of the decision process, she said.

"I'm not sure that there is much left" that a municipality can regulate, she argued.

Convening in the City-County Building, Downtown, the high court heard arguments in two cases where the Commonwealth Court ruled against local oil and gas regulations.

In one case, Oakmont Council denied a conditional use permit to Huntley & Huntley of Monroeville, which wants to drill a gas well in a single-family residential district. In the other case, the Independent Oil and Gas Association has challenged a Salem ordinance regulating access roads and other details about how a gas well would fit into the surrounding community.

The state Department of Environmental Protection, which administers the state oil and gas laws, filed briefs in both cases arguing that although it controls the technical aspects of oil and gas operations, local governments have zoning authority over those operations.

Levine repeated a key DEP assertion that the courts upheld local zoning authority even in three areas where state pre-emption is otherwise absolute -- anthracite strip mines, banks and liquor stores. The industry's counterargument misinterprets a 1992 amendment the Legislature made to the oil and gas law to overturn a 1987 court decision that grandfathered several local oil and gas laws, he said.

Dodge said lawmakers clearly intended to pre-empt all local regulation with the 1992 amendment, but she didn't explain why they kept a provision allowing for local zoning and flood plain ordinances.

The only concession Walter Bunt, the attorney for the Independent Oil and Gas Association, would give local governments is that they can require drilling companies to pay for repairs to roads and bridges damaged when they move heavy equipment.

He said two lower court decisions were correct in throwing out Salem's oil and gas regulations because they were nothing but "a mini Oil and Gas Act."

Gary Falatovich, Salem's lawyer, said the Westmoreland County township's ordinance deals only with issues outside the gas well site boundaries, such as access roads and transmission lines.

He asked the justices to draw a "bright line" showing what areas of oil and gas operations local governments can regulate. Bunt said the state law draws that "bright line," and there's nothing on the local government side.

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