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May 2, 2012

Hydraulic Fracturing Update

Recent developments in Pennsylvania, West Virginia and New York illustrate the continuing obstacles to hydraulic fracturing ("hydrofracking") efforts in those states, as well as the different types of land use controls pursued at local and state levels to restrict or promote hydrofracking.

In February 2012, Act 13 amending the Pennsylvania Oil and Gas Act was signed into law. On April 11, 2012, three days before the Act was to become effective, the Commonwealth Court of Pennsylvania granted a preliminary injunction to seven towns plus environmental group Delaware Riverkeeper for a period of 120 days to allow municipalities additional time to amend their zoning ordinances in a manner consistent with Act 13.

Act 13 preempts municipal zoning for oil and gas development in Pennsylvania, thereby establishing a standardized zoning scheme for all such development. Act 13 also imposes fees for companies utilizing natural gas wells, requires disclosure of fracking chemicals being used, and increases penalties for violations. Until Act 13 was enacted, municipalities in Pennsylvania had authority to regulate the location of gas and oil operations, but not their conduct.

In granting the seven towns and Delaware Riverkeeper a preliminary injunction to prevent Act 13 from going into effect until a challenge to its constitutionality could be decided, the court also held that ordinances predating Act 13's effective date of April 14, 2012 will remain in effect. In so holding, the court concluded there was an immediate and irreparable risk of harm that oil and gas development may be incompatible with later validly enacted zoning ordinances.

West Virginia
In June 2011, Plaintiff Northeast Natural Energy, LLC ("NNE") sued the City of Morgantown for violating plaintiff's constitutional rights by enacting an ordinance prohibiting hydrofracking within the City or within one mile of the City's boundary. Prior to the City's adoption of the ordinance, NNE had been issued permits by the West Virginia Department of Environmental Protection ("WVDEP") to develop two new hydrofracking wells near the City. NNE's suit claimed that WVDEP's regulations preempted the ordinance and prevented its enforcement. The City argued it was authorized to enact and enforce the ordinance under the state's home rule provisions.

On April 12, 2012, the Monongalia County Circuit Court granted NNE's motion for summary judgment and invalidated the City's ordinance. The court determined that exclusive control of oil and gas development and production rested with the WVDEP as set forth in its regulations.

New York
The Town of Rush in Monroe County became the latest in a long line of municipalities to weigh in on the hydrofracking debate when it enacted a 12-month moratorium prohibiting natural gas and petroleum exploration and extraction activities, underground natural gas storage and disposal of related extraction, exploration and production wastes. The Town of Rush joined dozens of municipalities throughout the state that have enacted temporary moratoriums. Numerous other municipalities, including the cities of Buffalo, Syracuse and Binghamton, have banned hydrofracking entirely.

The bans and moratoriums are significant because at an April 26, 2012 press conference, New York Department of Environmental Conservation Commissioner Joe Martens signaled that a community's support for or opposition to hydraulic fracturing will be a factor taken into consideration if the gas-extraction process is ultimately allowed. "I think logically where there is less resistance and less opposition and there is not a local land-use plan in place, I think those will be easier to permit than in other places," Martens said. "That's not to say that we're going to prohibit them in other places, but it's a consideration we have to carefully view."

The State of New York is still engaged in an environmental review of hydrofracking and is not expected to release any results or make any policy determinations until late 2012 or 2013.

If you require further information regarding the information presented in this Legal Alert and its impact on your organization, please contact Thomas Walsh, Chair of the Municipal & Land Use Practice Area, at 585-295-4414 or


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