Top court again weighs zoning for Marcellus Shale
PHILADELPHIA — The Pennsylvania Supreme Court heard arguments Wednesday in a Marcellus Shale zoning case that could have broad implications for how municipal governments decide which of their land use districts are appropriate for oil and gas drilling.
The case, Brian Gorsline v. Board of Supervisors of Fairfield Township v. Inflection Energy, has been closely watched because of its potential to influence shale gas development far outside of the Lycoming County community at its center. But during the session Wednesday the justices appeared inclined to keep a tailored focus.
Four residents, represented by the environmental organization PennFuture, challenged Fairfield Township’s decision to allow Marcellus Shale wells as a conditional use in an area zoned for residential and agricultural uses. They argue that the township disregarded its own zoning commitments by introducing industrial drilling into a residential district designed to preserve its quiet character.
A Lycoming County court judge sided with the residents, but the Commonwealth Court reversed that decision. The appeals court reasoned that a shale gas well is similar to types of facilities that provide a broad public service — such as a power substation or a water treatment plant — that can generally be located in any zone.
The case offers the high court an opportunity to further define the scope of its 2013 landmark decision in Robinson Township v. Commonwealth that wiped out a provision of the state’s drilling law requiring shale gas development to be allowed in all zoning districts.
The Gorsline case has drawn an array of friend of the court briefs from industry groups, chambers of commerce, environmental organizations and local governments hoping to guide the court’s direction.
Some municipal parties in the Robinson Township case wrote that their case restored to municipalities the power to make local decisions about where to allow drilling, but did not give local governments the discretion to allow it everywhere. They urged the court to declare a brightline rule that oil and gas development is an industrial land use incompatible with non-industrial zoning districts.
The Pennsylvania State Association of Township Supervisors, on the other hand, asked the court not to curtail municipalities’ authority to make their own local land use decisions, while Allegheny and Beaver counties wrote that if the court excludes shale development from broad areas it could “slam the door shut” on the region’s economic revitalization.
Chief Justice Thomas Saylor took a narrower path on Wednesday. The case may have constitutional overtones, he said, “but it seems to me that this is a land use case.”
“It is nice to talk about constitutional issues and policy issues and shale and gas,” he said to PennFuture attorney George Jugovic. “Could you talk about it like it’s a zoning case?”
Mr. Jugovic said the township erred by approving the wells without any substantial evidence that drilling operations are compatible with or similar to the allowable land uses in the residential and agricultural district.
Inflection Energy attorney Susan Smith said the township properly considered the issues and rightly decided that the finished wells would be similar to other allowed uses.
A producing natural gas well “is a land use that is passive, low-impact in nature,” Ms. Smith said.
Pressed by Justice Christine Donohue about whether the township should consider as part of its land use decisions the traffic, infrastructure, drilling and fracking operations required to get a well to produce gas, Ms. Smith said all of that activity is part of the well’s construction phase that falls outside of the realm of local zoning.
“We are regulating use. We are not regulating construction,” she said.
The justices did not indicate when they would issue a decision.