This past weekend I read a letter to the Butler Eagle about drilling and zoning from Middlesex Twp. I found it very enlightening.
The writer spoke of the overturn of Act 13 that returned zoning powers to municipalities regarding natural gas drilling. That's certainly true. She spoke of the alleged majority of leaseholders in Middlesex that township supervisors were “listening to” in changing their ordinances to allow expanded drilling in the township. I thought: “Okay, that's probably what happened in Butler Township, too.” Lastly, she spoke of DEP's 500-ft. setback as being state law and that no further restrictions were required. I figured that was probably at least a part of Solicitor Lutz's assertion that Butler Twp.'s drilling ordinance is in compliance with state law...
But nowhere in that letter did I see any mention of the Environmental Rights Amendment – Article 1, Section 27 of the PA State Constitution, upon which much of the PA Supreme Court's ruling on Act 13 was based.
As I understand it, from people like Atty. Jordan Yeager and others who were closely associated with this case, the court ruling does indeed return zoning powers to municipalities with regard to shale gas drilling, and it also requires municipalities to zone for drilling in a way that upholds the constitutional protections guaranteed by the Environmental Rights Amendment.
What does that mean? Do you know? Has Penn State Extension been roaming the commonwealth explaining to municipalities how to be in compliance with the revised Act 13 and the Environmental Rights Amendment?
Maybe they have, but I doubt it. I do know that Jordan Yeager has written letters to at least four municipalities in Butler County attempting to explain to them their rights and responsibilities under Act 13 and the Environmental Rights Amendment.
For example, in his letter to Adams Township officials, Atty. Yeager states that an ordinance that allows drilling everywhere would violate the state constitution. Butler Twp. has just such an ordinance.
And in his letter to Butler Twp. officials, Atty. Yeager states that if the township were to change its ordinance so as to no longer allow drilling in all zoning districts, such action would be in compliance with the state constitution and Section 27, and therefore would nullify any charges of “unlawful taking” that the township might incur through such an action.
However, if the township were to persist in allowing drilling to occur in all zoning districts, including residential, Atty. Yeager states that the township would run a “significant and substantial risk” of a constitutional challenge from township residents. Notice that he does not say a “regulatory” challenge – he doesn't mention the drilling ordinance being in violation of DEP regulations – but a constitutional challenge. Four times he mentions this in his letter to the township, once even referring to it as a “Section 27 challenge.”
And, given Atty. Yeager's track record and familiarity with this particular law and this particular court ruling, I don't think he would be mentioning that if he didn't think that such a challenge had a very good chance of being successful...
Consider well, gentlemen. Consider well...