Monday, December 23, 2013

PA Court Rules Zoning Can Be Used to Prevent Fracking

On Friday, December 20th 2013, the Pennsylvania Supreme Court affirmed a 2012 Commonwealth Court decision striking down portions of Act 13 that would have created a single statewide zoning for all oil and gas activities, and would in effect have taken away from the towns the ability to use zoning to exclude hydraulic fracturing of shale gas formations (fracking) in residential neighborhoods. According to Richard A. Ward, Township Manager Robinson Township, PA, Act 13 turned the entire state of Pennsylvania into one large industrial zone. No zoning could exclude fracking wells and shale gas processing in any location. Robinson Township joined by several other communities had challenged Act 13.

In 2012, Pennsylvania’s Commonwealth Court, ruled in favor of Robinson Township and the other municipal Plaintiffs. That Court struck down portions of Act 13, that they ruled were a constitutional violation of the property rights of surface landowners who would be affected by the Act’s elimination of municipal zoning authority. However, while affirming the decision, the state Supreme Court based its decision not in the property rights of surface landowners, but on Pennsylvania’s Environmental Rights Amendment. The Pennsylvania Supreme Court stated in its opinion that Act 13’s elimination of zoning and land use planning authority was unconstitutional because that was the primary method through which municipalities act as trustees under the Pennsylvania Environmental Rights Amendment. The Supreme Court found, the State cannot interfere with the constitutional duty of municipal governments to carry out the Environmental Rights Amendment.

This decision seems to grant higher zoning and land use authority to the municipalities than the state. While, the health and welfare of communities are best protected by local zoning, and geology and watershed characteristics vary by location, this ruling grants tremendous power in determining property rights and value to the municipalities. Land ownership is simply a bundle of rights; use rights, development rights and mineral rights. Fee simple ownership is owning the entire bundle of rights. In Pennsylvania, ownership of surface rights and ownership of minerals rights are often separated. In addition, mineral rights on the same tract may be separated from each other - oil, gas, coal, hard rock minerals, etc. may all be owned by separate companies. This decision effects the value of those rights.

The mineral rights were usually separated and sold before land was developed so that an individual or corporation may own the rights to an entire neighborhood. Pennsylvania does not maintain ownership records of mineral properties in a central location nor do they have property tax records for the mineral rights because they do not pay property taxes on those rights. Rather; county governments maintain the old transfer records that contain this information and suburban homeowners were often surprised to find that they did not own the oil and gas under their land.

All surface and mineral owners have property rights under the law. Pennsylvania recognizes both the mineral owner's right to recover the mineral, and the landowner's right to protection from unreasonable encroachment or damage. This decision in effect grants superior rights to the owner of the surface rights, the local voter; and may have long term consequences on real estate values. Under this decision, the Municipalities Planning Code can be used to regulate hydraulic fracturing, other oil and gas extraction, forestry, coal mining, and possibly industrial farming under the ACRE, Agriculture, Communities and Rural Environment Act.

This will serve to slow down shale gas development in the state and allow adequate time to evaluate the long term environmental and geological impacts from fracking. Drilling requires large amounts of water to create a circulating mud that cools the bit and carries the rock cuttings out of the borehole. After drilling, the shale formation is then stimulated by fracking, where on average 2-5 million gallons of chemicals and water are pumped into the shale formation at 9,000 pounds per square inch and literally cracks the shale or breaks open existing cracks and allows the trapped natural gas to flow. For gas to flow out of the shale, all of the water not absorbed by the formation during fracking must be recovered and disposed of.

Though less than 0.5% by volume, the proprietary chemicals represent 15,000 gallons in the waste water recovered from the typical hydro fracking job. The chemicals serve to increases the viscosity of the water to a gel-like consistency so that it can carry the propping agent (typically sand) into the fractures to hold them open so that the gas can flow. Determining the proper methods for the safe disposal of the large quantities of this fracking fluid that may also contain contaminants from the geological formation including brines, heavy metals, radionuclides and organic contaminants and monitoring the impact from this disposal must also be done. 

Geologists and engineers believe that in hydraulic fracturing the intervening layers of rock prevent a fissure from extending into the water table. The problems seen in drinking water wells near hydro fracking jobs typically occur when fracking fluid seeps into drinking water wells through improperly sealed or abandoned drilling wells (a large number of the problems have occurred in older coal bed areas). Proper well construction and abandonment standards to protect watersheds need to be developed and enforced. The water that is absorbed into rock formations may change the formations and the hydraulic balance in ways we do not understand and drawing large quantities of water in a short period of time may impact rivers and groundwater.

Finally, care must be taken to avoid degradation of watersheds and streams from the industry itself as large quantities of heavy equipment and supplies are moved on rural (and potentially residential) roads and placed on concrete pads. The picture below from the U.S. Geological Survey, USGS, shows the amount of equipment involved in a hydro frack. The watersheds must be monitored. Sampling should take place before fracking and at regular intervals after a hydro frack job. We need to proceed slowly to make sure that we are doing it right and protecting our water resources. We have only a small margin for error. The gas will still be there if we take the time to understand fracking adequately to be able to release the gas from the shale formations without significant damage to our water resources and communities.

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