The Center has established Criteria for Evaluating Hydraulic Fracturing Projects and we believe utilizing it could reconcile the differences between municipalities and natural gas drilling companies.
Such complete bans on drilling have yet to be ruled on by a court in Pennsylvania, but legal experts are doubtful they would survive. Local officials say such restrictions fall within a town's right to enforce zoning, much in the same way municipalities can prevent a chemical plant or prison from being built in the middle of a residential neighborhood. It's not clear what legal status a local bill of rights in Pennsylvania would have since there hasn't been one.
The ballot initiatives add a new legal wrinkle to a wave of local challenges to the use of hydraulic fracturing to extract natural gas from the Marcellus Shale, which stretches across much of Pennsylvania into West Virginia and New York. In the past 18 months, more than 100 Pennsylvania municipalities have enacted ordinances to limit or regulate such drilling.
Gas drillers say they are willing to work with communities to fashion ordinances that both sides are comfortable with. But they argue that state mineral extraction laws preempt drilling bans and that such onerous restrictions violate the rights of property owners, who could earn lease and royalty revenues. Gas producers are fighting back calling restrictive ordinances de facto bans that violate the Pennsylvania Oil and Gas Act's requirement that municipalities allow for reasonable development of minerals.
Chesapeake Energy Corp. of Oklahoma City, which plans to drill 40 to 50 wells in Peters Township, has leased land from two cemeteries, a country club and privately owned farms. Chesapeake hasn't challenged the township ordinance, even though it believes it is beyond the scope of officials' jurisdiction. The company will surely challenge the referendum if it is passed. (WSJ, 9/12/2011)