Commonwealth Court has recently sustained a local ordinance adopted by the County of Fayette that requires proposed oil and gas well operators to obtain a special exception granted by the zoning hearing board after a public hearing in accordance with standards specified in the zoning ordinance. Plaintiffs Penneco Oil and other oil/gas drilling companies argued that the ordinance was preempted by the specific preemption language of the Oil and Gas Act. In rejecting the arguments of the oil/gas operators, the Court ruled that the ordinance in question was an appropriate zoning ordinance under the Pennsylvania Municipalities Planning Code, and is the kind of ordinance that is exempted from the preemption language of Section 602 of the Oil and Gas Act. In deciding the case in favor of Fayette County, the Court discussed in great detail two prior Supreme Court cases1 dealing with the preemption question, and determined that, consistent with those prior decisions, the traditional purposes of zoning as set forth in the county zoning ordinance were distinct from the purposes set forth in Section 102 of the Oil and Gas Act. Accordingly, the Court concluded that the zoning ordinance does not constitute an attempt to enact a comprehensive regulatory scheme relative to oil and gas development in the county.  

This Opinion provides a template for what the courts consider acceptable zoning regulation affecting oil and gas drilling that seems to push the Huntley guidelines to the limit. On the face of it, the ordinance in question gives broad discretion to the Zoning Hearing Board to impose any restrictions it deems necessary, "to protect the public's health, safety and welfare." Note, however, that the Court here was looking at the ordinance in the abstract. This is not a case where the ordinance was actually applied to a specific, proposed well, nor did the Zoning Hearing Board impose any particular conditions as part of the special exception process.

This leaves the way clear for oil/gas operators to argue that specific municipal action on any particular zoning application is preempted, even though the ordinance itself may pass judicial muster. [The case is Penneco Oil Inc. et al. v. The County of Fayette, et al., 18 C.D. 2010, filed July 22, 2010.]







1
Huntley & Huntley, Inc. v. Borough Council of the Borough of Oakmont, 600 Pa. 207, 964 A.2d 855 (2009), and Range Resources v. Salem Township, 600 Pa. 231, 964 A.2d 869 (2009).