Pa. court reverses drilling decision that leaned on environmental rights

Ellen M. Gilmer, E&E reporter

Published: Wednesday, September 16, 2015

Pennsylvania landowners clashing with local officials over oil and gas development faced a major setback in court this week, as a state judge reversed a lower court’s decision that barred proposed gas wells in a rural township.

The Pennsylvania Commonwealth Court ruled Monday that the Fairfield Township Board of Supervisors was justified in approving a plan for two natural gas wells on private land in the township, about 90 miles north of Harrisburg.

The board approved the application of Inflection Energy LLC to build and operate two wells on the land of two local families, drawing appeal from neighbors who say the well pads would diminish their quality of life and threaten the local environment.

The township officials rejected the challenge, but the Lycoming County Court disagreed. The court found last year that Fairfield Township had failed to demonstrate that the residential zone was an appropriate area for oil and gas development.

“Further, [plaintiffs] persuasively argue that the uses permitted in the [residential] District do not involve the use of industrial machinery and chemicals, do not entail thousands of round trips of heavy truck traffic, do not cause loud noises at all hours of the day, do not impose threats to human health and safety and do not have negative impacts on the environment,” the Lycoming County judge wrote in his August 2014 decision.

The reasoning was based in part on the state Supreme Court’s landmark 2012 plurality opinion in Robinson Township v. Commonwealth, which found that the state constitution’s environmental rights amendment gives municipal governments a duty to protect the public trust and that they may not be barred from regulating where drilling occurs.

The county court’s reliance on Robinson Township was one of the first legal tests for the controversial pro-environment decision (EnergyWire, Sept. 4, 2014). Now, the Commonwealth Court has reversed it.

Considering an appeal of the Lycoming County decision, a panel of Commonwealth Court judges found that Fairfield Township officials had properly considered the impacts and imposed conditions on Inflection Energy before approving the wells.

The panel considered the Robinson case only in a footnote, noting that the township board had not violated the environmental rights amendment because no evidence of harm was presented to the board.

Tom Shepstone, a drilling advocate who consults for Inflection, celebrated the Commonwealth Court’s decision, saying in a blog post yesterday that the court took a “common sense” approach to zoning that focuses on the long-term use of the oil and gas well instead of the construction process.

“The long-term impacts, in fact, are all absolutely innocuous, with only minimal activity such as the occasional visits of the well-tender,” he wrote. “There’s nothing to be seen but a few pipes and tanks that are far less impactful than almost any other economic use that might be made of the property.”