Fracking, PA: The legal, the political, and the negotiable

By Ben Apple — Sept. 4, 2013 at 12:02pm

A fracking site in Pennsylvania (photo credit: Nicholas A. Tonelli, Flickr).
A fracking site in Pennsylvania (photo credit: Nicholas A. Tonelli, Flickr).

There’s a battle over fracking in Pennsylvania—but it’s probably not the one you’ve heard about. For years now, the future of Pennsylvania’s fracking development has hung in the balance as seven municipalities remain locked in litigation with the Commonwealth over the constitutionality of Act 13, an oil and gas statute that radically limits the regulatory powers of local governments. At issue in the ongoing case, Robinson Township v. Commonwealth, is whether the state, through Section 3304 of Act 13, can legally require municipalities to permit oil and gas operations—drilling, processing, compressing, etc.—in all of their land use zones: industrial, commercial and residential.

Notably, none of the parties’ legal arguments before the Pennsylvania Supreme Court touch upon the details of what is really happening: a political struggle between oil and gas interests on one side and municipalities defending their powers of self-determination on the other. A description of this political reality has instead been left to the dozen or so amicus briefs submitted to the Pennsylvania Supreme Court by interested parties including industry, unions, consultants, environmentalists, property owners, Democratic state legislators, and local governments.

However, even the amicus briefs fall flat in their limited analysis of what is at stake. On the pro-Section 3304 side of the dispute, the industry hails the benefits of a more uniform and predictable jurisdictional landscape over which it can wander freely. Oil and gas-related unions and consultants praise the plentiful jobs that will come with an unhindered industry. One alliance of property owners requests protection from ‘unreasonable’ local zoning and regulation. On the other side, municipal officials deplore their potential loss of power “to determine [] the long-term character of their local communities,” and to protect themselves from the risks and impacts of fracking development.[1] Environmentalists stress that the revocation of local zoning powers is completely unnecessary for successful oil and gas development.

These amicus arguments provide snapshots that belie the ongoing processes of public and private negotiations and local lawmaking that form the nucleus of fracking development, an operation that involves not just drilling, but everything that supports it, including trucks, roads, short- and long-term housing, local businesses, and public safety and health services. If upheld, Section 3304 will do more than just take away regulatory options for municipalities; it will dramatically shift the balance of bargaining powers between drilling companies, landowners, and local governments as they negotiate so many other aspects of development.

In this bargaining context, Section 3304 would have four clear consequences. The first, and potentially most salient, effect would be the provision’s forced opening of large amounts of land to fracking operations, crippling any strategic position that landowners may currently gain from the relative scarcity of drilling lands in localities. Second, the consequent rise in the number of landowners capable of leasing their land will both increase the competition for leasing between them and reduce their chances of negotiating reasonable regulation and risk-management through organization and cooperation. Third, where municipalities could usually step in to remedy these sorts of collective action problems, Section 3304 will revoke their powers to do so. Finally, municipalities will lose the leverage that comes with threats of imposing strict zoning regulations on fracking operations.

Considering the poor economic conditions that still plague so many suburban and rural municipalities, not only will these places have fewer bargaining tools to fight for responsible and safe development, but they will also have few, if any, alternatives. This reveals the true danger of Section 3304: If upheld, it will not just radically limit municipal powers over fracking development; it will leave oil and gas companies holding all the cards. And in that scenario, the types of destructive fracking development warned of by so many will become almost inevitable.

[1] Brief of Amicus Curiae Pennsylvania State Association of Township Supervisors, Robinson Tp. v. Com., No. 63 MAP 2012, at 3 (Penn. 2012).