What protections make the most sense for my community?
If you’re researching protections you have a lot of options, but not all of them will necessarily make the most sense where you live. Understanding the options will help you choose what approach to take when seeking protections.
Why does it matter which protective ordinances are adopted?
Not every type of protective ordinance is right for every municipality. In fact, if your municipality adopts an ordinance that is not rationally related to the existing conditions or the area, a gas company may challenge its validity and ultimately get it removed. (See the section on substantive validity challenges within the topic of "Types of Land Use Permits" for more information on that process.)
After Act 13 and the PA Supreme Court's decision in Robinson, there has also been confusion by the gas companies, the local officials, and the courts regarding what types of protective language local authorities can and cannot include in zoning ordinances. The legal doctrine of preemption says that if an activity is already regulated at a state or federal level then local rules cannot negate the existing state or federal regulations. Gas companies often argue that protective language created by local authorities is preempted if they address in any way the same topics that PADEP - or any other state and federal agencies - already regulate.
For example, PADEP requires that fracking infrastructure be placed a minimum distance from certain buildings such as homes. These minimum distances are referred to as “setbacks.” Gas companies have argued that since PADEP mentions minimum setbacks in their regulations it preempts any type of local rules regarding setbacks.
But recently, the Pennsylvania Supreme Court gave a bit more clarity on local government's authority to develop requirements about fracking activity. In their 2016 ruling on Robinson, the Court specifically mentioned setbacks as being within the purview of local rule-makers. They wrote:
“...municipalities may again, as they did prior to the passage of Act 13, regulate the environmental impact, setback distances, and the siting of oil and gas wells in land use districts through local ordinances enacted in accordance with the provisions of the MPC or the Flood Plain Management Act, provided that such ordinances do not impose conditions on the features of well operations which the remaining valid provisions of Act 13 regulate. Robinson Twp. v. Commonwealth, 147 A.3d 536, 566 (Pa. 2016).
Although some in the fracking industry feel that the issue of setbacks is still unsettled, this language by the Court is a helpful indicator on the issue.
What can I do to implement protective language that is successful if it is challenged?
The best way to ensure that protective language survives legal challenges is to develop the ordinance based on the unique features of your region, scientific decision-making, and expert opinions.
In the Delaware Riverkeeper Network’s guide Defending the Environmental Rights of Pennsylvania Communities from Shale Gas Development, they discuss factors to consider when determining which protections work best for different communities:
"In the land use planning context, this decision-making process is consistent with what good land use planners should already be doing. Specifically, proper land use planning takes into account a community’s public natural resources (e.g., sensitive groundwater areas, fishing streams, parks and forests, agricultural soils, floodplains, wetlands, steep slopes, etc.); historic resources; roads; existing development patterns including location of residences, schools, and hospitals; and crafts from that a plan of growth and conservation for the future, which is then embodied in a zoning ordinance and other ordinances that dictate which uses are allowed where, and what standards and conservation requirements apply. These considerations should always be a part of determining whether a use is proper in a particular location in a municipality – and that applies whether the use is heavy industry, such as shale gas development, or some other type of use." (continued on page 19 of the guide).