The Good Guys Win A Case with Big Fracking Implications

gentry class - Tom ShepstoneTom Shepstone
Natural Gas NOW

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Common sense, diligence, law and science just won a big one in PA Commonwealth Court – one with big fracking implications – as the usual suspects lost big. 

Justice often comes slowly, long after the din of public opinion has already convicted the innocent, but when it comes, it can change everything. That is the case with the Commonwealth Court’s reversal, announced yesterday, of a Lycoming County verdict prompted by the dirty tricks of two William Penn Foundation proxies.

The Commonwealth Court decision, in the case of B. Gorsline, et al. v. Board of Supervisors of Fairfield Twp. v. Inflection Energy, LLC, et al. – 1735 C.D. 2014, was an important victory for natural gas development and a big loss for Penn Future and the Delaware Povertykeeper a/k/a Riverkeeper, two organizations owing their existence to the funding of the Philadelphia foundation. They lost very big, in fact, as the decision established some extremely important precedents with big fracking implications going forward.

Inflection Energy (which, as a matter of full disclosure, is one of my planning clients) applied for a conditional use permit from Fairfield Township, Lycoming County. Although four previous gas well applications to the Township had already been approved, this particular application incurred the wrath of some not so close neighbors and received the support of Penn Future and the Delaware Riverkeeper. They challenged the approval of the application by Fairfield Township and appealed to the Lycoming County Court of Common Pleas where it inexplicably got assigned to a judge with little or no land use law experience and he delivered a bizarre opinion overturning the Township’s approval.

Fracking Implications

Fairfield Township Zoning Map – Notice that R-A District (yellow) encompasses the bulk of the Township and prohibiting development there would have effectively excluded it from the Township.

Predictably, this prompted much excitement in the fractivist community and a lot of headlines suggesting all sorts of fracking implications, all of which have been upended by this decision. The decision may be found here, but before reading it, take a look at the amicus curiae brief filed on behalf of the Delaware Riverkeeper by Attorneys John Smith, Jonathan Kamin and Jordan Yeager. It is more like a bombastic public relations piece than a legal brief and among the key assertions it makes are these:

An industrial unconventional gas well site next door to a person’s home abruptly upsets the expectations that accompany buying a home in a quiet, residential or agricultural area. Instead, residents face industrial operations for years to come; diminishing the value of their property; injecting a source of industrial air pollution in an area in which there was no expectation of such activity. The incursion of industrial gas development subjects families to round-the-clock lighting, flaring, truck traffic, dust, and noise, particularly during active drilling and fracturing. With such activities comes a risk of industrial accidents that will force residents to evacuate due to their proximity to the proposed site.

Unconventional natural gas development is simply not “compatible” with residential and agricultural development.

Think about this statement and how it deliberately implies the temporary impacts of completing the drilling and fracking of a gas well are somehow permanent. Common sense, of course, tells us they are not the same. Constructing a nursing home involves most of the same activities – including lighting, truck traffic, dust and noise – but no one would argue those short-lived impacts apply to the completed project likely to be around for 30-50 years. The Riverkeeper, nonetheless, suggests such faulty reasoning should apply to gas wells.

Fortunately, the Commonwealth Court didn’t buy it and this is the brief money quote from its decision (emphasis added):

The trial court also erred in focusing on the truck deliveries during the construction phase of the project because “[z]oning regulates the use of land and not the particulars of development and construction.” In re Thompson, 896 A.2d 659, 671 (Pa. Cmwlth. 2006).

This is an incredibly important point with major fracking implications given that industry opponents such as the Riverkeeper almost always focus on those particulars of construction rather than the impacts of the long-term use that are the proper subject of zoning. The long-term impacts, in fact, are all absolutely innocuous, with only minimal activity such as the occasional visits of the well-tender. There’s nothing to be seen but a few pipes and tanks that are far less impactful than almost any other economic use that might be made of the property. Moreover, it’s typically an ancillary use, not the primary one. If such a use is “incompatible” with other development, then virtually everything is.

What the Riverkeeper’s attorneys were doing, aside from sticking their nose into business having nothing to do with their tax-exempt mission of protecting the Delaware River, was what most opponents of natural gas development and most NIMBYs do; they throw a shovelful of manure at the wall to see what sticks.

The Commonwealth Court didn’t take the bait. They rejected it in favor of common sense and based zoning principles that fractivists have turned inside out to make their case. Zoning is about land use and land use is about the permanent activity, not the temporary. Of course there are trucks, just like there are trucks when you build a home, a skilled nursing facility or a Wal-Mart, but the activity that takes place during the building is no indicator and, therefore, cannot be the basis for determining the impacts of the long-term use.

This is not to say a community cannot address traffic associated with construction (or other construction impacts) through other regulations, cooperative agreements or even reasonable conditions attached to an approval if accepted by the applicant. All these things are typical. What a community cannot do, though, is to use those temporary impacts as the basis for characterizing the permanent use. The implications will be clear to any experienced land use and zoning attorney involved in these matters – the impacts of drilling and completing a gas well cannot be used to deny a conditional use permit for a well. That is a major deal and this case can, and will undoubtedly, be cited as a precedent.

fracking implications

That is far from the only bad medicine given to the Povertykeeper a/k/a Riverkeeper gang. The decision was a 100% win for Inflection Energy as the Commonwealth Court also rejected every bit of the ludicrous Lycoming County trial court opinion by Judge Marc F. Lovecchio, an opinion certainly influenced by the Riverkeeper and its sister entity, Penn Future, leaders of which are no running much of Pennsylvania government. PennFuture leader at the time, Cindy Dunn, now installed as Secretary of the Pennsylvania Department of Conservation and Natural Resources, then opined as follows:

On Friday, August 29, Judge Marc F. Lovecchio of the Court of Common Pleas of Lycoming County decided in favor of local residents in vacating and setting aside a conditional use permit that would have allowed Inflection Energy, LLC to build and operate a natural gas pad in the middle of a residential neighborhood in Fairfield Township….

Judge Lovecchio ruled that Fairfield Township’s zoning ordinance only permitted gas drilling as a conditional use in its Residential-Agriculture district if the proposed land use was “similar to and compatible with” the residential and other low-impact uses authorized as a right in the district. In holding that the Township’s findings were not supported by substantial evidence, the Court stated that the constitutional right of citizens to a healthy environment “cannot be ignored and must be protected.” The Court found that the company had failed to provide the township with any evidence to support the conclusion that the proposed use was similar and compatible, while the citizens had “presented substantial evidence that there is a high degree of probability that the use will adversely affect the health, welfare and safety of the neighborhood.”

“There is a long-held tradition in Pennsylvania that citizens can, through their local governments, endeavor to maintain the character of their communities,” said Cindy Dunn, president and CEO of PennFuture. “With this decision, the court affirmed citizen rights with respect to land use.”

Well, sorry, Cindy, but the Commonwealth Court didn’t see it that way and they didn’t buy your distortion about being “in the middle of a residential neighborhood,” as the record showed there was but one home within 1,000 feet of the proposed well. They also rejected every one of your contentions. Consider these findings (emphasis added):

the record contained detailed findings of fact. The trial court did not take additional evidence or confront a record absent of findings of fact. Indeed, the trial court itself claimed to be conducting appellate review. Consistent with that form of review, the trial court held that the record evidence did not support the Board’s conclusion that the proposed well was similar to and compatible with uses authorized in the RA District. However, this did not give the trial court authority to act as factfinder and substitute its credibility determinations for those of the Board. Nor do we agree with the trial court’s conclusion.

The principal problem with the trial court’s rejection of the Board’s legal conclusion is that it was based upon a narrow view of what uses are appropriate for the RA District. The Zoning Ordinance permits a wide range of conditional uses in the RA District, including forestry operations, hunting camps, hospitals, retirement homes, and commercial recreation. ZONING ORDINANCE, §4.2.2; R.R. 410a-411a. Inflection notes that in contrast to the size of a hospital, for example, a natural gas well will present a low physical profile and involve a small footprint on the land. More to the point, its proposed well is similar to a public service facility, which is expressly allowed in the RA District.

…Inflection’s proposed use satisfies the requirement set forth in 12.18.1 of the Zoning Ordinance that it “is similar to and compatible with other uses permitted in the zone where the subject property is located.” ZONING ORDINANCE, §12.18.1; R.R. 493a. The evidence about Inflection’s well was in no way rebutted, and the Board has already authorized Inflection’s other wells in the RA District.

…Proving that its proposed use is similar to and compatible with uses expressly permitted in the RA District is not dispositive. Inflection also had the burden to show that its proposed use does not “conflict with the general purposes of this [Zoning] Ordinance.” ZONING ORDINANCE, §12.18.3; R.R. 493a. Again, its evidence was uncontradicted. Inflection argues that its well will not conflict with the general purpose of the Zoning Ordinance, which expressly authorizes the extraction of minerals. ZONING ORDINANCE, §§12.18.1, 12.18.3; R.R. 493a.

In holding otherwise, the trial court conflated the general purpose of the Zoning Ordinance with the requirement that the proposed use be similar to and compatible with other uses allowed in the RA District.

…We hold that Inflection’s proposed use met the threshold requirements set forth in Sections 12.18.1 and 12.18.3 of the Zoning Ordinance. It is similar to and compatible with the uses permitted in the RA District and does not conflict with the general purpose of the Zoning Ordinance.

…Inflection argues that the trial court erred in concluding that it did not prove that its natural gas well would “not be detrimental to the public health, safety and welfare of the neighborhood where it is to be located.” ZONING ORDINANCE, §12.18; R.R. 493a. Inflection presented expert testimony on that issue, which the Board accepted. Neighboring Landowners presented no evidence to the contrary.

Neighboring Landowners claim that the Township did not do its job. They claim that the Township failed to obtain meaningful information from Inflection about the storage and transportation of chemicals and wastewater and the impact the well would have on the environment. They assert that “the record” contains evidence that Inflection’s activities will constitute a nuisance and have a noxious effect on the surrounding area due to noise, light, and traffic impacts. Neighboring Landowners’ Brief at 47. However, they do not cite where in the record this evidence is to be found.

…The Board acknowledged that Neighboring Landowners expressed concerns but concluded that their “speculation of possible harms” was insufficient to show that the proposed natural gas well will be detrimental to the health, safety and welfare of the neighborhood …Nevertheless, the Board responded to the concerns of Neighboring Landowners by imposing numerous conditions related to roadway maintenance, traffic and parking. It also required Inflection to provide emergency contact information upon request, visually screen the well from the neighborhood and comply with all federal state and local permits and approvals.

The questions asked by Neighboring Landowners did not constitute probative evidence that Inflection’s natural gas well would be harmful to the health, welfare and safety of the neighborhood. No evidence rebutted the evidence presented by Inflection. Accordingly, the trial court erred in holding that Inflection’s proposed well would present a detriment to the health and safety of the neighborhood.

Conclusion:

The trial court erred in holding that Inflection’s proposed use was not similar to a public service facility, which is expressly permitted in the RA District and compatible with other uses permitted in the RA District. The trial court also erred in holding that Inflection’s proposed use conflicted with the general purpose of the Zoning Ordinance, which specifically authorizes extraction of minerals. Finally, there was no probative evidence offered to show that Inflection’s proposed well will present a detriment to the health and safety of the neighborhood. Inflection satisfied the requirements of Section 12.18 of the Zoning Ordinance.

For these reasons we reverse the order of the trial court.

The key lessons here simple:

  • Speculation, which is all fractivists ever offer, doesn’t constitute evidence.
  • There is no substitute for preparation and assembling a good record.
  •  Wild exaggerations of what are and are not “residential neighborhoods” don’t work.
  • Judges don’t get to substitute their credibility determinations for those of the board actually taking the testimony.
  • Temporary activities associated with construction aren’t the land use.
  • Words and the law actually mean something.
  • Never assume a special interest organization such as Penn Future or the Delaware Riverkeeper has any agenda other than the one its funders pay it to pursue (an anti-gas one in this case) – they don’t speak effectively for anyone but themselves. They don’t care a whit about neighbors, communities or the law – just their mission and how they can use others in pursuit of it.

These are good lessons and ones Judge Lovecchio, the “neighbors” in this case (who really weren’t neighbors at all) and all those empathetic reporters who bought into the hyperbole ought to keep in mind the next time the charlatans appear on the scene to grab the glory and use them as tools to pursue their ideological agenda. The good guys usually win in the end and they certainly did this time.

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7 thoughts on “The Good Guys Win A Case with Big Fracking Implications

  1. This is the outcome that I would have expected. I have been siting communications towers for 18 years and have seen the same type of attempts to misuse the Municipalities Planning Code to block communications towers where the zoning ordinance had allowed them — much as this use was allowed.

    Great article.

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  3. “Think about this statement and how it deliberately implies the temporary impacts of completing the drilling and fracking of a gas well are somehow permanent. Common sense, of course, tells us they are not the same. Constructing a nursing home involves most of the same activities – including lighting, truck traffic, dust and noise – but no one would argue those short-lived impacts apply to the completed project likely to be around for 30-50 years. The Riverkeeper, nonetheless, suggests such faulty reasoning should apply to gas wells. ” …………………….Constructing a nursing home does create as much hazardous issues and pollution as HVHF which may be temporary in process but long term in results to peoples health ( and quality of life ) since the area becomes an industrial site for the remainder of production and development of one well usually brings multiple drilling and fracing ..These hazards are potentially a continuous treat to the mentioned issues .People need to pursue other courses of settlement ( lawsuits ) to get protection ….

  4. Also even the construction of a building or any operation that creates a nuisance to local residents is subject to a Nuisance law suit !!……and so be it !

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