Contempt for the law

We were not surprised to see the Town of Damascus capitulate with regard to its requirement that Newfield Appalachia, LLC obtain a special exception permit for operating in a rural/residential district. The big gas drilling companies have sophisticated legal staffs on retainer, plenty of experience in oil and gas law and deep pockets that allow them to pursue court cases indefinitely. The Township of Damascus, numbering some 3,500-odd people in a rural corner of Pennsylvania, simply can’t compete. In this regard, the comment by Marian Schweighofer, executive director of the Northern Wayne Property Owners Alliance (NWPOA), that agreeing to a consent decree was necessary to save the town from possibly massive legal expenses, sounds like good common sense.

But Newfield’s actions so far suggest that they hold the laws of Pennsylvania, the courts of Pennsylvania and the Commonwealth’s local municipalities in contempt. We feel that it is vital to nip this kind of behavior in the bud.

We’re not sure why Newfield filed in Federal rather than state court and asked for a jury trial, but it might have something to do with the probability that, in light of the state supreme court ruling Huntley & Huntley v. the Borough of Oakmont, no Pennsylvania judge would have ruled in its favor.

Newfield argued that Damascus’s zoning ordinance, because it purports to regulate areas covered by the state Oil & Gas Act, is unenforceable, since state law on gas drilling pre-empts local law. And it appears that parts of the ordinance, for instance much of section 422.5, titled “Location requirements,” probably are in fact pre-empted.

But there are other parts of the ordinance that are clearly allowable under Huntley. Factors the ordinance says should be considered in granting permits include “adjacent property, the character of the neighborhood, traffic conditions, parking, public improvements, public sites or rights-of-way, adjacent property values….” This echoes a list of conditions in Huntley considered to be proper matters for local, not state, control: “encouraging the most appropriate use of land throughout the borough, conserving the value of property, minimizing overcrowding and traffic congestion, and providing adequate open spaces.” Such parts of the ordinance are clearly enforceable, and the town, accordingly, has the jurisdiction to request a permit.

As troubling as its attempt to do an end-run around the Pennsylvania courts is Newfield’s reiteration, in its complaint, that it had repeatedly impressed on town officials that the local zoning ordinance had no power over the company, foisting on them Newfield’s own self-interested interpretation of the law. Newfield is trying to make the point that town officials showed bad faith because they initially agreed with the company’s interpretation, so requiring a permit was a change of position. But this could equally be seen as the tale of an out-of-town bully who literally lays down the law to the weaker locals, and is chagrined when those locals find out for themselves that the law actually empowers them.

The Pennsylvania Supreme Court has deemed that towns have a right to set up zones in which drilling is allowed only as a special exception. This is not subject to controversy. If a permit had been denied on the basis of unenforceable portions of the ordinance, Newfield would have been within its rights to challenge. But in refusing even to file for the permit, Newfield ran roughshod over the law, not even bothering to stop operations while it filed with the court for permission to ignore the stop-work order. In light of these facts, we are puzzled by the comment of the NWPOA member who, at the meeting in which Damascus announced its capitulation, stood up to argue that we don’t need to worry because protections of the environment and local waters are built into the gas drilling leases.

Why should Newfield show any more respect for a lease than it has for the Damascus zoning ordinance? The same experienced legal team and deep pockets that appear to mandate surrender on the part of the town will almost certainly, someday down the road, mandate similar surrender on the part of landowners who see the terms of their leases violated.

That’s why we think it’s vital to discourage this kind of behavior from the get-go. The suit filed by Damascus Citizens for Sustainability, charging that the township’s capitulation to Newfield’s zoning demands violates certain residents’ right to due process, is an attempt to do just that. Without it, a precedent would be set for natural gas drilling companies around the state that they can get whatever they want, whether or not the law is behind them, just by filing a suit and doing a little blustering. That wouldn’t be good for anybody. Not even the leaseholders.

Also in this issue:

• Youth Voice: Rethinking our relationship to technology

Dr. Punnybone

Take One