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Worry, debate follow Pa. court’s drilling decision

HARRISBURG, Pa. – Last month’s state Supreme Court decision that backed the rights of municipalities in their fight against Gov. Tom Corbett’s new gas drilling law has left environmentalists, business owners and lawmakers trying to anticipate how it will change the broader legal landscape.

The Dec. 19 decision is viewed as unusual for its length, its legal rationale and the breadth of examination it has prompted.

Business advocates consider it a major setback and not just because it upended a key victory in the Republican-controlled Legislature for the booming natural gas industry. Environmentalists cheered the decision, saying it strengthens the hand that environmental considerations will play in government decisions.

The high court’s ruling comes as the energy industry is increasingly able to extract natural gas from previously unreachable formations deep underground and is challenging suburban notions of land use from Pennsylvania to Colorado.

After the industry descended on Pennsylvania in earnest in 2008, some companies complained that municipalities, mostly in southwestern Pennsylvania, tried to use zoning rules to unreasonably limit drilling. As a result, the industry made it a top priority to persuade lawmakers to eliminate municipal authority over how drilling companies could operate. Corbett, a Republican, backed the industry.

The law – opposed by nearly every Democratic lawmaker – restricted municipalities’ ability to control where companies may place rigs, waste pits, pipelines and compressor and processing stations. Among the municipalities’ biggest objections were requirements that drilling, waste pits and pipelines be allowed in every zoning district as long as certain buffers were observed.

But Supreme Court Chief Justice Ronald D. Castille said in the 162-page decision that four of the court’s six participating justices believed the state had overstepped its bounds. Making it more complicated, and perhaps further reaching, three of six justices said the law violated the obligations under the environmental rights amendment to the Pennsylvania Constitution, adopted in 1972.

Both conclusions are worrying to business advocates.

Some wonder whether any industry will ever be able to get the state’s help again in navigating municipalities’ planning and zoning rules.

“It’s a slippery slope here,” said David W. Patti, the president and CEO of the Harrisburg-based Pennsylvania Business Council, whose members include Pennsylvania-American Water, United States Steel, Waste Management and Exelon. “It could be anything. Does this decision say we can’t have any rules at all, and municipalities are the final arbiters of all land use?”

Gene Barr, the president and CEO of the Pennsylvania Chamber of Business and Industry, said his organization’s lawyers are still trying to gauge the broader implications for chamber members.

The state has forced its way into municipal land planning before on behalf of a heavily regulated resources industry – timbering, for example. But various land-use lawyers have said the 2012 drilling law had seemed unprecedented for its detail in limiting a municipality’s zoning authority when it came to exploration of the Marcellus Shale, considered the nation’s largest-known natural gas formation, which lies under large parts of Pennsylvania, West Virginia, Ohio and New York.

The decision is thought to be the first to use the environmental rights amendment to strike down a Pennsylvania law, and it is viewed as paving a new avenue to attack development proposals. Instead of contesting the project’s permit applications, an opponent might sue over whether a government decision properly met obligations under the environmental rights amendment, some lawyers say.

“It’s arguable whether it’s more effective or not, but I think the view is the more lawsuits there are, the less likely it is that things are going to get done,” said Harry Weiss, an environment and natural resources lawyer for Philadelphia-based Ballard Spahr. “There’s a cost to defending lawsuits, even if you win.”

On one hand, lawyers say the Supreme Court’s decision doesn’t necessarily mean lower court judges must follow its reasoning in their decision-making since fewer than four justices supported it. On the other, someone trying to stop a development project can still use it to justify his or her case, and at the very least, courts will have to pay attention because three Supreme Court justices clearly tried to make a statement, some lawyers say.

“It gives effect to words that have languished in obscurity for four decades,” said Mark Szybist, a lawyer for the Harrisburg-based environmental advocacy group, PennFuture.

For now, Corbett is asking the Supreme Court to reconsider its decision. If it doesn’t, a lengthy process could follow in the lower Commonwealth Court to sort through the ruling’s effect on other elements of the sprawling law.

That process must play out before lawmakers and the Corbett administration decide how or whether to try to assert new limits on municipal planning authority over gas drilling, said J. Andrew Crompton, a lawyer for Senate President Pro Tempore Joe Scarnati, R-Jefferson, who helped write and negotiate the gas drilling law.

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