On August 3, the Pennsylvania Supreme Court ordered the Commonwealth Court to rehear a challenge to a zoning permit allowing shale gas drilling in Middlesex Township (Butler County) specifically on the grounds of whether it is consistent with that court’s Environmental Rights Amendment decision in 2017.

The challenge was brought by the Delaware RiverKeeper Network, Clean Air Council, and several individuals against the Township and R.E. Gas Development LLC.

On June 7, 2017, the Commonwealth Court affirmed the decision of Butler County Common Pleas Court to deny an appeal of a zoning permit allowing drilling saying the Middlesex Township zoning ordinance allows drilling in a residential–agricultural zoning district.

The county court and Commonwealth Court pointed to the fact the township supervisors expressly adopted a change to the zoning ordinance, over the objections of the Township’s Planning Commission and after extensive public hearings, to allow for oil and gas well site development in these areas.

Several of the objections to the zoning permit and ordinance brought by Delaware RiverKeeper, et al included:

  • Violates Article 1, Section 1 of the Pennsylvania Constitution because it was not designed to protect the health, safety, morals, and public welfare of its citizens and, therefore, is not a valid exercise of the Township’s police power;
  • Violates Article 1, Section 1 by injecting incompatible industrial uses into a non-industrial zoning district in violation of the Township’s Comprehensive Plan thereby making the ordinance irrational; and
  • Unreasonably infringes on their rights under Article 1, Section 27 of the Pennsylvania Constitution to clean air, pure water, and a healthy local environment in which to live, work, recreate, and raise their children.

The Pennsylvania Supreme Court remanded the case to the Commonwealth Court specifically “in light of Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017)” relating to the Court’s finding local and state government and agencies have an obligation under the Environmental Rights Amendment to act as trustees for the environment.

The Pennsylvania Supreme Court also directed Commonwealth Court to consider it’s ruling in June that local zoning ordinances must specifically provide for drilling, saying:

“In addition, in light of the amendments contained in Middlesex Township Ordinance 127, which expressly include gas well development as a permitted use in the subject R-AG zone, and our decision in Gorsline v. Bd. of Sup. of Fairfield Twp., —A.3d—, 2018 WL 2448803 (Pa. 2018) wherein we noted “this decision should not be misconstrued as an indication that oil and gas development is never permitted in residential/agricultural districts, or that it is fundamentally incompatible with residential or agricultural uses,” we direct the Commonwealth Court to reconsider the relevance of Gorsline to its analysis of the issues on appeal in this case.”

Click here for a copy of the Pennsylvania Supreme Court order. Click here for the Commonwealth Court decision.