DEP Says Municipalities Have Some Say Over Gas Development

The state Department of Environmental Protection recently weighed in on the role local municipalities can play in regulating oil and gas development.

The issue is at the heart of a Supreme Court case, scheduled to be argued in September, over oil and gas ordinances adopted in Salem Township in Westmoreland County and Oakmont Borough in Allegheny County. Those ordinances were challenged in court by gas companies or industry groups.

The state law that regulates gas drilling, the 1984 Oil and Gas Act, explicitly precludes municipalities from regulating anything already outlined in the act. How wells will be permitted and plugged, what safety features and environmental controls are necessary, and how well sites must be restored are all outside local control.

But DEP filed friend of the court briefs in the cases stating that "the Department does not support a reading of the (Oil and Gas) Act that eliminates any municipal regulation of oil and gas well activities that bear only a tangential relationship to the features" already regulated by act.

DEP also states that municipalities "retain the authority to make land use determinations" as long as they are not redundant or do not conflict with the act.

In the Oakmont case, DEP held that the Commonwealth Court was wrong to say that the Oil and Gas Act preempts a municipality's right to limit gas drilling to certain zoning districts. A municipality must allow for gas drilling to occur somewhere, but the Municipalities Planning Code-- which regulates how towns and cities make zoning laws-- "does not require that mineral development be allowed in each and every zoning district," the Department argued. In essence, DEP said that municipalities can regulate where wells are drilled, as long as they do not try to regulate any aspect of how wells are drilled.

DEP noted that the court also mistakenly conflated setback limitations in the Oil and Gas Act (which determine how far away from structures and water sources a gas well can be drilled) with an understanding that gas operators have "unconditional permission to locate oil and gas operations 'anywhere' in a municipality" outside those minimum setback distances.

This reading, if adopted by the Supreme Court, could have profound implications for municipalities seeking to limit where gas wells can be drilled, particularly since most wells are planned for agricultural or residential zones where industry is not traditionally prevalent.

The DEP was less definitive in the Salem case, which challenged a more wide-ranging ordinance that regulated everything from the placement of access roads and pipelines, to the installation of tire-cleaning surfaces, to water-quality testing associated with oil and gas development.

The court acted properly in that case, the DEP argued, except that it failed to allow for local control over grading and slope standards for wells-- a fact that had been established by a previous precedent.

DEP relied on the court's description of the Salem ordinance for its opinion and was careful to tailor its agreement with the court's decision to that "limited description."

In its decision, the Westmoreland County Court had thrown out the Salem ordinance wholesale, without addressing the particular aspects of the ordinance piece by piece-- much to the dismay of the township's solicitor who had hoped to press the court for a finding on each specific issue.