Editor & Publisher, Marcellus Drilling News (MDN)
The Delaware Riverkeeper, financed by the Haas and Wallace families to kill Keystone State fracking and opportunity, just lost big in a Southwestern PA case.
THE Delaware Riverkeeper (i.e. Maya van Rossum) and a small group of anti-drilling parents from the Mars School District (“Martians”) in Butler County, Pennsylvania (more than 200 miles from the Delaware River, the protection of which is supposedly the former’s mission) have just suffered a crushing defeat in their years-long battle to prevent Rex Energy from drilling wells “near” a local school.
Backed by money and legal help from Philadelphia Big Green groups Delaware Riverkeeper and Clean Air Council (both financed by the odious William Penn Foundation, special interest tool of the Haas family, which made its fortune in chemicals), the Martians filed frivolous lawsuit after frivolous lawsuit. The effort is aimed at denying landowners in Middlesex Township revenue from legally permitted drilling. Meanwhile, the Haas family lives in luxury as trust-funders as do the members of the Wallace family who also finance THE Delaware Riverkeeper.
The lawsuits have cost the taxpayers of Middlesex Township over $80,000 in legal fees. Even amid the back and forth lawsuits, at least two of the wells were permitted and drilled by Rex Energy, despite the bleatings of the Martians. But, that didn’t stop the frivolous lawsuits.
Using legal assistance from THE Delaware Riverkeeper, the Martians appealed a town ordinance that allows the wells to be drilled about 3/4 of a mile from the local Mars School. A panel of three western PA judges in Commonwealth Court heard arguments in the case last November. This week the three-judge panel ruled – against – THE Delaware Riverkeeper and the Martians.
In an opinion Wednesday, Commonwealth Court affirmed a Butler County Court of Common Pleas decision to deny a challenge by the Delaware RiverKeeper Network, the Clean Air Council and local residents to a local zoning ordinance allowing Marcellus Shale gas drilling.
Among other objections, the Court specifically rejected claims that Middlesex Township, Butler County violated Article I, Section 27 of the state’s constitution– the Environmental Rights Amendment.
The case involved an oil and gas permit issued to R.E. Gas Development, LLC (Rex) on a farm owned by Robert Geyer in an area zoned agricultural and residential.
In August 2014, Middlesex Township supervisors enacted an ordinance over the objection of the Township’s Planning Commission to expressly provide for the use and regulation of oil and gas operations in the Township.
In September 2014, DEP issued a permit for the drilling pad on the Geyer farm site and objections to the ordinance were filed in October 2014.
Commonwealth Court disagreed with all the objections raised by the appellants to the Butler County Court decision.
Editor’s Note: The court decision may be found here and it was a slam-dunk for the forces of reason against the radical interpretations and motives of the carpetbagging Delaware Riverkeeper. Key to the decision was this reasoning from the court regarding Pennsylvania’s Environmental Rights Amendment, which the Delaware Riverkeeper has been trying to shape into an ever more threatening fractivist weapon:
In Payne, this Court established a test to determine whether governmental action implicates the provisions of Article 1, Section 27:
Judicial review of the endless decisions that will result from such a balancing of environmental and social 31 concerns must be realistic and not merely legalistic. The court’s role must be to test the decision under review by a threefold standard: (1) Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth’s public natural resources? (2) Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum? (3) Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?
We have explained that Article 1, Section 27 “places policymakers in the ‘constant and difficult’ position of ‘weighing conflicting environmental and social concerns’ and ‘in arriving at a course of action that will be expedient as well as reflective of the high priority which constitutionally has been placed on the conservation of our natural, scenic, esthetic and historical resources.’ To this end, we recently described [Article 1, Section 27] as ‘a thumb on the scale, giving greater weight to the environmental concerns in the decision-making process’ when ‘environmental concerns of development are juxtaposed with economic benefits of development.’” Ordinance 127 meets the Payne three-factor test. With respect to the first prong of the Payne test, under Section 175-155.2, any person or entity intending to engage in “oil and gas well site development” must comply with a number of requirements including: (1) provide an application including a copy of the Erosion and Sediment Control Plan (ESCGP-2) and Post-Construction Stormwater Management Plan prepared by a registered and licensed professional who has been trained by DEP’s Office of Oil and Gas Management on erosion and sediment control and post construction stormwater management for oil and gas 32 activities; (2) if weight-restricted Township roads will be used, demonstrate compliance with any applicable Township ordinances, Department of Transportation regulations, and Township road bonding requirements, provide proof of bonding, and enter into a road maintenance agreement with the Township; (3) provide a copy of Highway Occupancy Permits and a driveway permit if entrance to the site is a Township road; (4) provide a copy of the Preparedness, Prevention, and Contingency Plan; (5) provide reimbursement for all fees permitted under Section 617.3(e) of the MPC;25 (6) provide a copy of any applicable DEP permits relating to water storage and the impoundment must be reclaimed in accordance with DEP rules and regulations; and (7) comply with all DEP signage requirements.
Regarding the second prong of the Payne test, as the Board noted:
Oil and gas activities are specifically excluded by Ordinance 127 from exclusively zoned residential districts, be it R-1, R-2 or within any PRD overlay district. The exclusion encompasses the three components of oil and gas drilling – well pads, processing plants and compressor stations. In addition, compressor stations and processing plants are not permitted in the R-AG district. The only oil and gas activity permitted in the R-AG mixed use district is an oil and gas well pad and its temporary industrial components. All of these limitations on oil and gas use evidence rational planning and a balancing of interests.
… Article I, Section 27 does not give the Governor the authority to disturb that legislative scheme. Neither does it give him the authority to alter [DEP]’s responsibilities pursuant to that scheme.”).
Finally, with respect to the third prong of the Payne test, the Board explained that the Township’s Supervisors “acted in their role as trustee for future generations, as required by Article 1, §27 . . . by helping to preserve agricultural resources for future generations;” “the effect of Ordinance 127 constitutes a balancing of the benefits of preserving agriculture including utilizing oil and gas use upon agricultural areas encompassing no more than 30% of the Township, and, by limiting suburban growth;” and Objectors “failed to meet their burden that oil and gas drilling pads will injure their neighbors.”