Home Rule Disaster: Pennsylvania Residents May Be Forced to Live Within 300 Feet of A Frack Well Pad.

It looks like the worst in Pennsylvania has come to pass.  Despite a letter by nine GOP state senators two weeks ago pledging “opposition to language [in a Pennsylvania bill] that removes a local municipality’s ability to regulate and control all land use in their area,” both houses of the Pennsylvania legislature eviscerated municipal zoning authority this week by votes of 101 to 90 (house) and 31 to 19 (senate) respectively.  The bill – a compromise version of Senate Bill 1100 and House Bill 1950 – is expected to be signed today by Governor Corbett.

Cutting to the chase, here are some of the things that the law would mean for Pennsylvania municipalities:

• No Control Over Where A Frack Well May Be Zoned – Under the new bill, most oil and gas operations, including frack wells, pipelines and impoundment pits (the open-air pits where toxic water is stored after fracking) will be required to be permitted uses in all districts.  Compressor stations, processing plants and some activities at impoundment pits may be restricted from residential zones, but must be allowed as permitted uses in agricultural and industrial zones.
• Limited to No Control Over Setback Distances –  Setbacks in residential zones for wells and drilling rigs are limited to 500ft from any existing building.  Setbacks for well pads (the area around the well where trucks gather and chemicals are mixed) are limited to 300ft from any existing building.  Likewise, setbacks for impoundment pits are limited to 300ft.  It is important to recognize that this is a setback from a building, not a property line, so in many cases a well would be allowed right next to a yard, a driveway, or a livestock area.
• No Control Over Hours of Operation – Localities may not impose restrictions on hours of operation on the drilling of wells or “subterranean operations” at compressor stations or natural gas processing plants.  In other words, if there is a frack well in your neighborhood kicking up a racket after midnight, don’t bother calling the police, because the law now says they can frack all night long.  (Note that there are noise restrictions on compressor stations and processing facilities in the new law, but these restrictions do not apply to gas wells.  There may, however, be some room for municipalities to enforce noise ordinances applicable to all industrial uses, gas drilling included).

The main tradeoff for this incredible loss of municipal power is a 15yr incremental, per-well “impact fee,” estimated to be the equivalent of a 1-3% tax on natural gas extraction, which, when compared with other state gas taxes like the 5% tax in West Virginia and the 7% tax in Texas, is one of the lowest in the country (until this law, Pennsylvania had been collecting no fee at all).  The fee is supposed to go towards offsetting the cost of fracking to localities like damage to local roads and spills, but it is unlikely that the money collected will be enough to deal with the multitude of contamination incidents stretching from Butler to Bradford County, especially when you factor for the possibility of major, multi-million dollar contamination events like Dimock.

Even granting that the money would stretch far enough to remediate spills and other damage from fracking – this largely misses the point.  Pennsylvania citizens have just lost the right to protect themselves through local democratic action from the negative health and community character impacts of a heavy industrial activity, all in exchange for the slim chance to break even.

To be clear, Pennsylvania municipalities concerned about gas fumes, car traffic, and the risk of explosions still have the authority to determine whether a gas station is too hazardous to be sited in a residential community.  On the other hand, a municipality would be powerless to stop an industrial gas well serviced by thousands of heavy truck trips and circled by toxic, open-air waste pits from being placed immediately adjacent to a playground, provided that it was 500ft from any existing building.

Today’s action by the Pennsylvania government shows that the big money of the oil and gas industry can and does buy special treatment at the expense of the health and democratic rights of the Pennsylvania citizens and small businesses that rely on access to clean water (e.g. agriculture and food and beverage manufacturing).  This should be a powerful lesson to New York that legislation that protects a municipality’s ability to protect itself – such as the recent bills proposed by Assemblywoman Lifton and  Senator Seward – is needed now before drilling starts, and before it is too late.