Preemption Language Gone, But Pennsylvania's Impact Fee Would Still Limit Local Governments

• Scott Detrow
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  Scott Detrow is a congressional correspondent for NPR. He also co-hosts the NPR Politics Podcast.
  
  Detrow joined NPR in 2015 to cover the presidential election. He focused on the Republican side of the 2016 race, spending time on the campaign trail with Donald Trump, and also reported on the election's technology and data angles.
  
  Detrow worked as a statehouse reporter for member stations WITF in Harrisburg, Pennsylvania, and KQED in San Francisco, California. He has also covered energy policy for NPR's StateImpact project, where his reports on Pennsylvania's hydraulic fracturing boom won a DuPont-Columbia and national Edward R. Murrow Award in 2013.

State legislators may no longer be weighing whether or not to “supersede and preempt” local drilling regulations. But the two impact fees in front of the House and Senate would still restrict what municipalities could and could not regulate, when it comes to gas extraction operations within their boundaries.
Both the House and Senate added language into their Marcellus Shale bills this week requiring local governments to allow natural gas wells to operate in all zones, including residential. The near-identical sections of HB 1950 and SB 1100 also empower Pennsylvania’s Attorney General to serve as the judge of whether or not a municipality’s drilling ordinances are “reasonable.” Under the provisions, the Attorney General can bar a township or borough from receiving any impact fee revenue. The Attorney General would also have the power to bring suit against the offending municipality in Commonwealth Court.
There are several major differences between the impact fees passed by the House and Senate this week. This method of restricting local zoning options is one of the few major areas where leaders from both chambers are on the same page.  That means the odds are good it ends up in the final bill.
Here’s how the regulatory scheme works:

What’s Reasonable?

The legislation requires municipalities’ ordinances to “provide for the reasonable development of minerals.” What’s reasonable? By and large, that’s for the Attorney General and the Commonwealth Court to decide. But the bills both set parameters local governments would be required to follow.
Municipalities would have to:

• Complete permit reviews within thirty days.
• Allow oil and gas operations and impoundment pools in all zones, including residential.
• Allow compressor stations and natural gas processing plants in agricultural and industrial zones.
• Keep drilling regulations in line with existing construction and industrial zoning. That means a township wouldn’t be able to set one standard for noise emitted by compressor stations, and another for factories within its borders.

The legislation also sets a mandatory 300-foot buffer zone between well pads and residential buildings. Compressor stations would need to be 750 feet from buildings, and could not exceed a sound of 60 decibels at the adjoining property line.
Why the standards? Drew Crompton, the chief-of-staff for Senate President Pro Tem Joe Scarnati, explained they’re meant as a way to keep municipalities from enacting effective moratoriums on drilling within their boundaries. It prevents “silly ordinances” aimed at keeping drillers away he explained, like bans on water trucks within municipal limits. “That is unreasonable,” he said, “and makes the industry go nutty. …This is meant to set baselines to prevent that from occurring.”
Natural gas drillers have been vocal in their request for statewide zoning consistency.
Drilling opponents are up in arms over the restrictions, especially the requirement to allow drilling within residential zones. “It makes sweeping new restrictions on what towns can do with their zoning,” said Myron Arnowitt, the state director of Clean Water Action. “Well pads and frack pits full of chemicals will be allowed as close to 300 feet to your home, or your child’s school.” Arnowitt said he’s concerned the restrictions would “make it almost impossible for townships to exercise their rights and obligations to protect their residents, businesses, and community quality of life.”

Roots In 2005 Law

How would the new statewide standards be enforced? That’s where the Attorney General comes in.
Under the legislation’s setup, if a drilling company thinks a municipal ordinance is unreasonable, it can file an appeal with the Attorney General. The AG would then review the zoning language, and issue a ruling within 120 days. If the office deems the ordinance unreasonable, the municipality doesn’t get any impact fee revenue.
There’s more, though: the legislation would allow the Attorney General to file suit against the local government in Commonwealth Court, in order to invalidate the ordinance. Effectively, the Pennsylvania Attorney General would be suing on behalf of an aggrieved drilling company. If a special master appointed by Commonwealth Court rules on the driller’s behalf, the court would have the power to make the municipality pay both sides’ legal fees.
The setup is based on the 2005 ACRE law, which imposed similar restrictions on municipal zoning of agricultural activity. Like the impact fee bills, the law had a goal of barring local governments from crafting zoning regulations designed specifically to crack down on local farming activities – specifically, the creation sludge pools on large-scale industrial farms. The law prohibited local governments from enacting zoning  that, “prohibits or limits a normal agricultural operation.” Here, “normal” meant day-to-day activity geared toward raising livestock or growing crops, and preparing products for sale.
If an agricultural producer takes issue with a municipal ordinance, it files a complaint with the Attorney General, who has the power to sue a municipality. Since the law went into effect, the Attorney General has gotten “15 to 20 requests a year,” according to Ross Pifer of the Penn State Dickinson School of Law, who wrote an article analyzing the ACRE law in 2010. “The Attorney General generally accepts about half, meaning  [the office] feels about half of those ordinances would be considered unauthorized.”  Most of the time, the municipality works with the Attorney General’s office to amend its language,  and avoids a court case. “A relatively small number of cases have required litigation,” said Pifer. “But I think a lot of…disputes have been resolved through the process that’s set up.”
The Attorney General’s spokesman did not return a call for comment on how effective the ACRE setup has been for the department, and how many staffers are devoted to working on municipal challenges. Governor Tom Corbett served as Attorney General, of course, from 2005 to January 2011. His spokesman did not respond to calls for comment on ACRE, either.
The setup has its critics. In 2009, a group opposed to a large-scale pig farm in Peach Bottom Township, York County, rallied in the Capitol against what they framed as an unfair restriction on a local government’s right to regulate what happens within its boundaries.  The law renders a municipality incapable of protecting its “health, safety and welfare,” activist Laura Yanney said at the time, according to an article published by Capitolwire.
Republican Senator Joe Scarnati’s top staffer, Drew Crompton, disagreed, calling the legislation a success. “Five years ago we had a real dust up. …communities were rebelling, trying to get local governments to restrict where agricultural farmers could put these sludge pools.” Creating a situation where the Attorney General would rule on local ordinances eliminated the pressure residents were placing on their township supervisors, to draft zoning aimed at individual farmers, he argued.
Crompton said he hopes the impact fee bill will have a similar effect. “It empowers the Attorney General to call balls and strikes, and say…whether zoning is out of bounds or not.”

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