On May 21, 2019, the PA Supreme Court denied our request, on behalf of Protect PT, to review decisions of the Commonwealth Court upholding the Penn Township Zoning Hearing Board’s approval of four unconventional well pads. Protect PT and Fair Shake are disappointed that the Supreme Court was not willing to review this decision. We feel that the lower court’s rulings will allow unsafe practices in Penn Township to continue unchecked and denying further review of these rulings will perpetuate these conditions throughout Pennsylvania. Despite the disappointment our hope is that the case serves as an important lesson for citizens and municipalities across the state.
First, this case turned on the interpretation of a municipal ordinance, so does not directly affect how oil and gas wastewater is treated outside of Penn Township. Here, the Commonwealth Court determined the local Ordinance treated storage of oil and gas wastewater differently than storage of other toxic liquids. Despite significant evidence in the record that oil and gas wastewater is in fact toxic, the Court simply deferred to the definitions and standards found in the local ordinance which inexplicably distinguish between wastewater and other toxic liquids. While the decision is therefore helpful for understanding how oil and gas wastewater is treated in Penn Township, it should not be relied on in other contexts.
Second, when drafting a zoning ordinance for a new industry, it is important to consider how new provisions relate to existing standards. In this case, prior to revising their ordinance for unconventional gas development, Penn Township already regulated storage of toxic liquids, but in adopting a revised ordinance for oil and gas activities effectively created an exception for storage of toxic wastewater. Therefore, unless this exception was intentional, the lesson is to read ordinance amendments in the context of the entire ordinance.
Finally, although Protect PT’s arguments that approval of these well pads violates citizens Environmental Rights were ultimately rejected, the efforts of the local zoning hearing board to impose conditions on the development should serve as a guide. The Board’s conditions included requirements for submission of all third party permits, construction of noise barriers, ongoing noise and air quality monitoring, increased vegetation screening, lighting mitigation, traffic coordination with the local school district, and establishment of an emergency hotline for residents. These are commendable protections that would not be in place without the involvement of residents and a thoughtful zoning board and can serve as a guide for other municipalities reaching to meeting obligations imposed by the Environmental Rights Amendment.
Read Protect PT’s statement on the decision here.