Real Estate: When Does Local Zoning Regulation of Coal and Oil & Gas Preempt State Regulation?

Posted By Cliff Tuttle | January 8, 2009

Posted by Cliff Tuttle

The Commonwealth Court, in Huntley & Huntley, Inc. v. Borough Counsel of Oakmont, 929 A. 2d 1252 (2007), held that the Oil and Gas Act unconditionally preempts and supersedes a municipality’s right to determine the appropriate zoning districts in which gas drilling operations can be located.

Then, in Hoffman Mining Company, Inc. v. Zoning Hearing Board of Adams Township, No. 2122 C.D. 2007, the same Court held on October 15, 2008 that the provisions of the Surface Mining Conservation and Reclamation Act (SMCRA), providing for a 300 foot set back of gas wells from residences, does not pre-empt a municipal zoning ordinance requiring a 1,000 foot set back.

What gives here? How can the state regulation of oil and gas operations be paramount to local ordinances and state regulation of coal mining not follow the same rule?

There are plenty of reasons to expect state law in both of these fields to overrule local ordinances. Uniformity of statewide regulation of dangerous activities is one. Technical expertise of the state regulator, who is likely to be career professional in the field, over a local official without special training or knowledge is another. Consideration of issues relating to operations involving massive equipment with health, safety and environmental factors in the balance, all vital to the state but some not of particular importance to local land use regulators, is still another. In addition, everybody knows that a municipality could disingenuously exclude coal mining or oil and gas extraction from within its boundaries by adopting more zealous regulations than neighboring communities. Statewide regulation, even when stringent, has the advantage of presenting a level playing field to all.

But the reason for the different result in these two cases does not relate to any of these considerations. The answer lies in the Commonwealth Court’s close reading of the separate state statutes governing the two extractive industries.

In Huntley, the Court quoted with emphasis Section 602 of the Oil and Gas Act, providing that while ordinances adopted pursuant to the Municipalities Planning Code, inter alia, could regulate oil and gas development: “No ordinances . . . adopted pursuant to the aforementioned acts shall contain provisions which impose conditions, requirements or limitations on the same features of oil and gas well operations regulated by this act or that accomplish the same purposes as set forth in this act. The Commonwealth, by this enactment, hereby preempts and supersedes the regulation of oil and gas wells as herein defined.”

After distinguishing a contrary case by pointing out that Section 602 had been amended after the case to provide stronger preemption language, the Court stated:

“This language does not preempt all local regulation, because such a conclusion would render meaningless the amendment’s distinction between regulations that do or do not relate to ‘features’ the act addresses.”

The Court then considered what “features” were addressed by the Oil and Gas Act and declared that local ordinances are preempted in each case where the two came into conflict. This included location of wells. Since the Act provided that a well must be located more than 200 feet from a dwelling, the municipality could not impose a stricter requirement.

In Hoffman, Section 17.1 of SMCRA (pronounced “smack-ra”) is quoted as follows:

“Except with respect to ordinances adopted pursuant to . . . the ‘Pennsylvania Municipalities Planning Code,’ all local ordinances and enactments purporting to regulate surface mining are hereby superseded. The Commonwealth by this enactment hereby preempts the regulation of surface mining as herein.”

Missing from this statutory language is the critical “features” provision found in the Oil and Gas Act. Without such language, ordinances enacted pursuant to the MPC would not be preempted. This conclusion was bolstered by a series of cases wherein the Supreme Court had held that various zoning ordinances preempted SMCRA. Other cases have drawn a distinction between land use, health and safety issues, which zoning may address, and operating issues, to which zoning has little relevance. The problem with this analysis is that mine regulation deals with all of these areas and those who promulgate and enforce mining regulations of all types are likely to be experts.

There are other elements to these two cases not discussed here. The Pennsylvania Supreme Court granted a Petition for Allowance of Appeal at 950 A.2d 267 (2008) in Huntley to address whether the preemption of the Oil and Gas Act is as broad as the Commonwealth Court has declared. No reported decision has yet granted or denied any appeal in Hoffman.

Despite the differences in statutory language, there is no valid reason why oil and gas cases should go one way and coal mining cases the opposite on the same issue. The two statutory sections quoted above should be uniform. Either add the Oil and Gas Act language missing from SMCRA to that statute or cut it out of the Oil & Gas Act.

It is my own opinion that empowering municipal councils and zoning hearing boards to decide questions regarding well spacing or set backs from residences is an invitation to mischief. The fact that a finding by a group of municipal officials that a 1,000 foot set back is supported by substantial evidence (established by lay testimony at a community meeting) should not be determinative. Does that mean that the state mine regulators must enforce a 300 foot setback in one location and a 1,000 foot set back in another? Or if zoning regulations required 20 feet, would the state regulators be required to reduce their set back requirements to 20 in that locality?

It makes more sense philosophically and practically for statewide regulations on such subject to be adopted on a statewide basis by an official with the expertise to make that decision and statewide responsibility of enforcement.

CLT

Welcome

CLIFF TUTTLE has been a Pennsylvania lawyer for over 45 years and (inter alia) is a real estate litigator and legal writer. The posts in this blog are intended to provide general information about legal topics of interest to lawyers and consumers with a Pittsburgh and Western Pennsylvania focus. However, this information does not constitute legal advice and there is no lawyer-client relationship created when you read this blog. You are encouraged to leave comments but be aware that posted comments can be read by others. If you wish to contact me in privacy, please use the Contact Form located immediately below this message. I will reply promptly and in strict confidence.

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