DEP files brief in gas case

Agency supports some municipality powers

By TOM KANE

HARRISBURG, PA — The Pennsylvania Department of Environmental Protection (DEP) is supporting two Pennsylvania municipalities in their gas drilling case before the Supreme Court, with some limitations.

“No municipality may regulate the same features of oil and gas well operations regulated under the Oil and Gas act,” said Dennis Whitaker, assistant chief counsel for DEP. “However, the department does not support a reading of the Act that eliminates any municipal regulation of oil and gas well activities that bear only a tangential relationship to the features of oil and gas well operations as regulated by the Oil and Gas Act.”

In the case of Oakmont Borough, the DEP comes down squarely in favor of the municipality, he said. He stated that the township has the right to exercise regulations about what can and cannot be done in zones that are ruled as residential.

Municipalities may regulate other things that are tangentially related to gas drilling and not essential to its operation. “Things like erosion and sediment controls,” he said. “We support core municipal functions that are their right.”

Erosion and sedimentation regulations look at removal of large segments of earth and the building of roads. As long as these activities are tangential to the gas drilling operations, the municipalities may exercise some controls, he said.

In the Salem Township case, the gas company, Huntley and Huntley, sought a conditional use permit but were denied by the township. They took the township to county court, which supported the township, but lost to an appeal in the Commonwealth Court. Then Salem appealed to the Supreme Court.

In a similar case, Oakmont Borough also appealed to the Supreme Court.

“The Supreme Court accepted the two appeals and asked us to file an amicus curiae (friend of the court) brief, explaining our position,” Whitaker said.

A third municipality, Nockamixon Township in Bucks County, has also filed an amicus brief as has Catskill Mountainkeeper and other groups. Nockamixon also is using its zoning authority to prevent a company, Arbor Resources of Michigan, from drilling in two properties in the township.

The two cases from Oakmont and Salem will be heard before the Supreme Court on September 9, 2008. None of the attorneys for the municipalities would predict when the court would rule on the case.

“I have given up on predicting when the Supreme Court would rule on a case,” said Gary Falatovich, attorney for Salem Township.