Preemption and Other Considerations Before Introducing Protective Zoning
Language Should Be Tailored to The Specific Needs of The Community
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 might challenge its validity and ultimately have it removed. (See the section on substantive validity challenges within the topic of "Types of Land Use Permits" for more information on that process.)
Language Cannot Preempt State or Federal Regulations
After Act 13 and the PA Supreme Court's decision in Robinson,there has 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 the Pennsylvania Department of Environmental Protection (PADEP) - or any other 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.
Recently however, the Pennsylvania Supreme Court gave a bit more clarity on the extent of a local government's authority to develop requirements regarding 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).
There could still be other valid legal claims that would prevent local governments from increasing their setbacks beyond the state-mandated minimums. Be sure to consult with legal counsel and other professional experts before you begin the process of introducing increased setback requirements.