Whitehall Supports (But Doesn't Join) Lawsuit Against State Drilling Regulation
The Whitehall Council decided on Wednesday to issue a letter backing opposition to Act 13.
The Whitehall Borough Council voted on Wednesday night to issue a letter in support of a local lawsuit challenging Act 13, the recently inked Pennsylvania law that bars local governments from regulating Marcellus Shale drilling and that goes into effect on April 14.
The letter of support, which came on the heels of a similar gesture by the Pittsburgh City Council, has no legal implications for Whitehall, where zoning regulations limit Marcellus Shale drilling to four locations in the borough. Whitehall's South Hills Country Club has leased part of its land for drilling to Chesapeake Energy, but country club officials have said that no such drilling has occurred.
Seven area municipalities, including Cecil and Peters townships, have signed on as plaintiffs in a March 29 lawsuit—see media gallery above—opposing Act 13 and are seeking a preliminary injunction, calling the act unconstitutionally vague and a burden on local governments and taxpayers. A hearing is scheduled for April 10.
Early on during Wednesday night's Whitehall Council meeting, members of the South Hills Area Against Dangerous Drilling (SHAADD) community group urged the council to write the letter. Councilwoman Kathleen N. DePuy said that she hadn't read through the nearby municipalities' 108-page lawsuit and voted against a letter from Whitehall on that principle.
Other council members argued that they didn't need to pore over legal-ese to understand the lawsuit's goals.
"Think about this," Whitehall Mayor James F. Nowalk said. "Prior to Act 13, the (Whitehall) Council was able to regulate the location of where this activity takes place. We have noise ordinances. We have road ordinances. We have safety ordinances. All of those went out the window with this act."
He added as his voice grew louder, "It took away a municipality's ability to protect its residents. What do we exist for if not to protect our residents?"
Councilman Glenn Nagy stressed that the letter being encouraged by SHAADD "does not obligate us in any legal way" and simply shows support for the lawsuit's efforts.
Arguments in Whitehall over whether and how local laws should regulate natural-gas drilling have been heated. Those in favor of local government regulation say that a clause in the Pennsylvania State Constitution gives municipalities the right to protect their citizens' air, water and environment. Meanwhile, supporters of Act 13 say that drillers can't do business when each municipality has different local standards.
Act 13, an amendment to Pennsylvania's 1984 Oil and Gas Act, puts the state in charge of regulations. But how the act will be enforced is another question. A Q-and-A page on the state's Public Utility Commission (PUC) website lists these items back to back:
"What about local governments with ordinances already in effect dealing with drilling? The law preempts local ordinances with respect to the development of oil and gas operations. Can a local government adopt an ordinance regulating drilling? Yes, so long as the local ordinance regulating oil and gas operation allows for the reasonable development of oil and gas resources."
The page says that local government leaders should contact the PUC with any questions about ordinances and to expect a response within 120 days. The commission would take the same amount of time to review a driller's complaint.
A municipality with an ordinance found to violate Act 13 will not be eligible for funds from an impact fee built into the act until its regulations are amended or repealed. Any party not satisfied with the PUC's determinations can file appeals in Commonwealth Court.
Part of the local areas' lawsuit against Act 13 argues that its language is unconstitutionally vague, while another part says that the legal process therein creates a burden on local governments and taxpayers. The lawsuit reads: "Petitioners face the possibility of attorney fees and costs, and potential civil liability from taxpayers and residents. The harm to the Petitioners is immediate, and the Petitioners have no other lawful means with which to stay the enactment of Act 13 which is unconstitutional."
Echoes of that tension could be heard in the debate leading up to Cecil Township joining the lawsuit—from the other side. As the Canon-McMillan Patch reported, Cecil Township Supervisor Elizabeth Cowden called the legal challenge itself a "waste of taxpayer money" and said that it would be fruitless.
While Whitehall neighbors Baldwin Borough and the City of Pittsburgh have passed outright bans on Marcellus Shale drilling, Whitehall opted for conditional use ordinances, seeing the latter as more legally advantageous. Legal advisors who helped draft bans in Pittsburgh, Baldwin, Forest Hills Borough and elsewhere have disputed that line of reasoning.
Nevertheless, Mayor Nowalk and Whitehall Councilman Philip Lahr have been outspoken in their opposition to any drilling in their borough.
DePuy, the lone dissenter in Wednesday's council decision to draft a letter supporting the lawsuit against Act 13, doesn't see eye to eye with her colleagues.
DePuy has no problem with asserting municipalities' governing rights, she said, but she is leery of what she sees as tangential advocacy—particularly the Delaware Riverkeeper Network's involvement in the lawsuit.
Generally, DePuy said, she sees both good and bad in Act 13, and if she is to get behind a lawsuit against it, she wants to know that the argument matches her residents' interests.
"We're here to say what's right for the municipality," DePuy said.
In other news from Wednesday night's council meeting:
- Councilwoman Linda J. Book said that she wrote a letter to Port Authority of Allegheny County concerning the proposed elimination of the Y45 Baldwin Manor Flyer bus line this September. After the 51C line got the axe, Book said, more people began to rely on the Y45. "You have to have service for people to go to work," she said, adding that concerned residents should contact Port Authority.
- Work on a new Whitehall fire station along Route 51 is less than a month away from completion, and after approving change orders that resulted in higher expenses, the council eventually brought the project to roughly $136,000 below budget. Whitehall's hired construction company expects to turn the new building over to the borough on April 23.
- Whitehall's Planning and Zoning Commission has changed zoning on a longtime neighborhood eyesore—the Weyman-Provost junkyard. Businessman Tom Kesten hopes to transform that space into a high-end storage facility after he finishes clearing the property.
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