Is the Tide Turning for Home Rule in Pennsylvania? Nine GOP Senators Oppose Law Seeking to Stop Local Power to Zone Gas Drilling.

Just a few short months ago, the prognosis for the longstanding right of Pennsylvania municipalities to protect the health and property of their residents from fracking activities, or indeed any oil or gas drilling, looked pretty grim.  That’s because two bills – House Bill 1950 and Senate Bill 1100 – each passed through their respective house of the PA legislature last November.  The bills are not law yet (the two houses must confer and produce a compromise bill to be re-voted on by both houses and signed by the governor), and do not contain identical language, but either bill in its present form would significantly curtail municipal ability to zone gas drilling, if not eliminate it altogether.

Until recently, passage of a final bill that would decimate local control looked like a foregone conclusion. But then, just this past Thursday, nine GOP senators signed a letter addressed to the Republican leadership in both houses expressing their “opposition to language [in the bills] that removes a local municipality’s ability to regulate and control all land use in their area.”  This marks a huge turning point in the development of this issue, as the letter is signed by eight senators who voted in favor of SB 1100, and a final bill would likely not pass without their support.

 For reference, Pennsylvania municipalities currently do have the ability to control some aspects of fracking through their zoning power – that’s according to two recent landmark decisions from the Pennsylvania Supreme Court (the Huntley and Salem cases).  Those cases held that, while existing state law doesn’t allow a municipality to regulate a technical “feature” of gas drilling or pass an ordinance whose “purpose” is the regulation of gas drilling, it can zone the areas where a frack well may be put (i.e. preventing a well in a residential zone or near a hospital).

In other words, the purpose of zoning gas drilling is not to tell drilling operators how to drill just like the purpose of zoning a bakery is not to tell bakers what types of bread they should serve.  Zoning just makes sure that communities develop in the way that is consistent with their democratic choices (and it makes sure that sewage treatment plants don’t end up next to preschools!).

Zoning gas drilling activities isn’t just a hotbed issue in Pennsylvania – as drilling expands across the country, municipalities everywhere are confronting the issues of how to deal with fracking in their communities and what authority they have in the face of state regulation.  As NRDC has blogged recently, the issue is particularly relevant here in New York, where legal challenges to two municipal ordinances banning gas drilling may soon determine the scope of municipal zoning authority over gas drilling in the State.

In Pennsylvania, even with this recent letter, there is still reason to worry that a final bill will stifle the power that municipalities already have to protect residents from the impacts of fracking through traditional zoning (a topic I’ll address in later posts).  For now, however, this is a good sign that momentum on this issue is headed in the right direction and that the voice of the local communities of Pennsylvania is beginning to be heard!