Pennsylvania Record

Monday, October 21, 2019

Appeals court again upholds approval of fracking operation

State Court

By Scott Holland | Jul 2, 2019


HARRISBURG — A Pennsylvania appeals court has again upheld a lower court’s denial of an appeal in a zoning lawsuit concerning a fracking operation.

The Delaware Riverkeeper Network, the Clean Air Council and three Middlesex Township residential landowners objected to a Butler County trial court denying their appeal of a township zoning board ruling denying their challenge to an ordinance and a permit the board issued to R.E. Gas Development for a gas well development.

The Commonwealth Court originally affirmed the board’s decision, but the state Supreme Court vacated the order and remanded the case in light of its 2017 opinion in Pennsylvania Environmental Defense Foundation v. Commonwealth, a Middlesex Township zoning ordinance amendment allowing a gas well in the zoning classification in dispute as well as its 2018 opinion in Gorsline v. Board of Supervisors of Fairfield Township.

Judge Michael Wojcik wrote the unreported opinion issued June 26. Judges Renée Jubelirer and Bonnie Leadbetter concurred.

The opinion largely revisits the panel’s initial finding, in which it determined objectors to the zoning board’s decision didn’t adequately argue approval of the temporary industrial use posed health or safety dangers to township residents. Although oil and gas activity would be justly barred in a residential district, the land in question is mixed use residential and agricultural, and such drilling is acceptable in agricultural areas.

The court also repeated its assertion the board didn’t err in rejecting allegations the zoning ordinance violated the Pennsylvania constitution, invoking its own opinion in a May 14 decision in Frederick v. Allegheny Township Zoning Hearing Board. The panel further cited testimony of the township’s history being “steeped in the production of oil and gas from agricultural properties since the mid-19th Century to the present” and said there is no conflict with the Environmental Rights Amendment to the state constitution.

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