Penn Twp Frack Ban Decision Now in Hands of Local Judge

Last November we updated you on a lawsuit filed by a group of anti-fossil fuelers in Penn Township (Westmoreland County), PA (see Penn Twp Ninny Nannies File Lawsuit to Block Apex, H&H Wells). A group calling themselves Protect PT, backed with money and legal help from Big Green group PennFuture, filed a lawsuit to try and stop Apex Energy and Huntley & Huntley (H&H) from drilling wells in the township. A Westmoreland County judge heard some testimony in the case in April (see Penn Twp Antis Try to Use PA ERA to Block Shale Drilling). The peril with Protect PT’s lawsuit is that it uses Pennsylvania’s so-called Environmental Rights Amendment (ERA), which liberal PA judges have, in recent years, breathed new life into. The argument is that fracking denies those who live near this temporary activity their “right” to enjoy Mom Nature, therefore it should be banished forever. Protect PT is attempting to pull off a total frack ban in the Penn Township. Although the judge heard testimony in April, more was given this week. All testimony is now done and the case rests with the judge. We expect whoever loses will appeal. Below is a recap of the case and the testimony given this week…

This was the news from Monday, as the week began, previewing the coming testimony:

The battle over fracking in Penn Township returned to a Westmoreland County courtroom Monday with residents discussing their experiences and fears about unconventional gas well drilling.

“We were told that we would not be affected by drilling,” said Tracey Mason, who lives near Apex Energy’s Quest well pad in the northeast corner of the township.

She described noise like a “jet engine” keeping her family up at all hours and driving through a fog of dust kicked up by drilling.

This week’s testimony is expected to conclude Tuesday. Experts on both sides of the issue testified before Westmoreland County Judge Harry Smail last month.

Local environmental group Protect PT challenged the township’s zoning ordinance, which allows hydraulic fracturing wells in both industrial and rural-zoned areas. The anti-fracking group contends wells should be limited to industrial zones.

Protect PT called 10 of its members as witnesses Monday to talk about why they oppose fracking. All live in or near the township, many near the Poseidon and Quest well pads, which are currently operating.

Other well pads are in various planning stages.

Noise, pollution and decreasing property values were top concerns.

“I like the fresh air that I’ve got right now,” resident Harold Baker said.

Resident Larry Irr said he’s worried the sound-blocking barriers won’t be enough to deaden the noise of drilling.

“It’s like trying to stop the green giant with a playpen,” he said.

In addition to its own solicitor, the township is being represented by lawyers from Apex Energy and Huntley and Huntley Energy Exploration, which own the current and proposed fracking wells.

The township and energy companies are expected to call six witnesses Tuesday, including township employees who will focus on how the zoning ordinance was created, said Michael Korns, the Greensburg lawyer representing the township.

Korns said Monday’s witnesses mostly focused on the two operating well pads — both of which are located in industrial zones. The Quest wells were drilled before the zoning ordinance was implemented.

Protect PT has opposed all fracking wells, no matter where they are located, he said.

“I think what Protect PT really wants is a total ban on oil and gas drilling in the township,” he said.

Previous Pennsylvania court cases have ruled fracking need not be limited to industrial zones, but Protect PT has argued that it is an inherently industrial process unsuited to residential or rural areas.

Smail will ultimately decide whether the zoning ordinance stays or goes.

No matter his decision, Smail has ruled that it will not impact the White, Draftina and Beattie well pads, all of which are in development and which were approved last year in a settlement after Apex sued the township for $300 million for rejecting the pads. (1)

This was the followup story, after testimony concluded:

The fate of fracking in Penn Township is in a judge’s hands after four days of testimony featuring more than 20 witnesses and more than 100 documents presented as evidence.

Local activist group Protect PT challenged the township’s mineral extraction overlay in court before Westmoreland County Judge Harry F. Smail.

The overlay allows unconventional gas well drilling in rural and industrial zones.

The court heard from anti-fracking residents Monday. On Tuesday the township and the gas companies that do business there presented their side.

Township Community Development Director Bill Roberts said the township’s zoning ordinance was developed over about seven years, in accordance with changing state and federal rules.

The township started working on a new zoning ordinance in 2009, updating regulations that remained largely unchanged since the ’90s.

In 2012 state legislators passed Act 13, which limited municipalities’ ability to restrict natural gas drilling. Parts of the law were overturned by the Pennsylvania Supreme Court in 2013.

The changing standards delayed implementation of Penn Township’s ordinance, Roberts testified.

“We just kept adjusting as we moved along, until we ended up with the ordinance you see in front of you,” he said.

The ordinance includes limitations on sound, noise and traffic generated at drill sites, he said.

Protect PT questioned whether the gas companies influenced the development of the ordinance.

Ryan Hamilton, Protect PT’s lawyer, asked Roberts numerous questions about township Commissioner Jeff Shula, whose son works as a geologist for Huntley and Huntley Energy Exploration, which has one active fracking well in the township and has several more in development.

Shula recused himself from voting on the final ordinance but was involved in shaping some of the earlier drafts.

Hamilton presented an email from Huntley and Huntley to township leaders.

It warned about outside activists and “anti-drilling ‘gypsies’” who would try to stop fracking.

On Monday, fracking critics said drilling would hurt property values, harm residential development and hurt quality of life.

Roberts said interest in residential development in the township has been growing. There are several housing developments in the works in the township.

“There is a very strong desire to develop in Penn Township right now, particularly residentially,” he said.

Two township property owners who lease mineral rights to Huntley and Huntley testified on behalf of the company, saying they might have to sell their land if it weren’t for the royalties they’re expecting from natural gas production.

Huntley and Huntley employee Jason Gehringer said there are already more than 200 conventional gas wells in the township, and the mineral rights to more than 65 percent of township land has been leased to oil and gas companies.

Chris Hess, vice president of land and business development for Apex Energy, discussed the large number of state and local approvals his company must receive to drill in the township.

The company has spent more than $12 million acquiring land and permits, and its Quest well site had generated $1 million in royalties for property owners, he said.

Protect PT director Gillian Graber said existing regulations will not alleviate residents’ concerns.

“We don’t think the conditions are strong enough… and the conditions will certainly not keep us from environmental harm,” she said.

She said the four days of testimony over two months were “exhausting.”

“I think it’s for, hopefully, a good outcome,” she said.

Its up to Smail to decide whether the township’s mineral overlay is legal, or if it violates state environmental protections.

That decision will likely not happen soon. Both sides need to submit their final arguments in writing — a process that could take months — before Smail begins deliberation. (2)

(1) Pittsburgh (PA) Tribune-Review (Jun 4, 2018) – Penn township fracking battle continues in court

(2) Pittsburgh (PA) Tribune-Review (Jun 5, 2018) – Testimony concludes in Penn Township fracking case

Posted: 06-06-2018


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