Trax Farms on PA Route 88 near Library, PA

From an Article by Gideon Bradshaw & Scott Beveridge, Washington PA Observer Reporter, June 4, 2019

Mickey Gniadek said he left his house in Union Township and spotted a white cloud hovering a little more than a yard above an EQT frack well pad across the street and smelled chlorine when he went to get his mail one day in 2013.

He later described the experience during a hearing concerning EQT’s application to build a similar pad in neighboring Jefferson Hills, Allegheny County, saying he started feeling an intense pressure in his chest that made breathing difficult.

“Gniadek testified that he staggered with great difficulty back to his home, and, once inside, collapsed against the wall, gasping for air,” according to a Supreme Court decision issued on Friday.

Justices found that Jefferson Hills’ borough council was allowed to evaluate Gniadek’s and several other Washington County residents’ allegations of problems at the Trax Farm site when they weighed EQT’s application to build a similar well pad known as the Bickerton site. The plans called for the pad to hold as many as 16 wells.

The 6-1 decision gives local officials who are considering companies’ land-use applications the authority to weigh testimony from private citizens of other municipalities about their experiences with similar facilities.

“Our client was thrilled and I think all Pennsylvania municipalities should be thrilled with this decision,” said attorney John Smith, who acted as Jefferson Hills’ special counsel during the litigation, “because it allows them to take in and evaluate relevant evidence prior to making their decisions.”

Jefferson Hills officials cited accounts from Gniadek – who also said his skin broke out in measles-like red spots after he saw the cloud – and others who described similar issues with air quality, traffic and intense noise as a reason for denying EQT a conditional-use permit for the Bickerton plans. EQT successfully appealed that decision in Allegheny County Common Pleas Court.

The Commonwealth Court upheld a decision in favor of the gas driller in a 2017 decision. The Supreme Court’s decision reverses the lower appellate court’s and remands the case back to Allegheny County.

“This is a precedent-setting ruling that has far-reaching implications for communities throughout Pennsylvania,” said Lisa Graves-Marcucci, community outreach coordinator for the Environmental Integrity Project.

“This ruling by our state Supreme Court underscores local governments’ role in protecting public health, safety and welfare as a key factor in accepting or denying an application for an oil and gas operation,” Graves-Marcucci said.

EQT spokeswoman Linda Robertson said the company was “disappointed in the Supreme Court’s decision that upheld a zoning permit denial based on anecdotal evidence and involving an unrelated work site that caused temporary inconveniences for its nearby residents that EQT worked diligently at the time to address.”

Among those who testified before Jefferson Hills council was Gary Baumgartner, who testified problems with air quality at his house near the Trax wells meant that he and his wife had to leave “countless times” in the middle of the night, once staying at a hotel for two months.

His pregnant daughter and her husband moved out of the family home based on a physician’s recommendation, he said.

Baumgartner, Gniadek and others testified EQT had offered them payments of tens of thousands of dollars after they complained about problems from the Trax Farms wells.

In her 31-page opinion, Justice Debra Todd wrote that the Commonwealth Court had made a mistake when it agreed with EQT’s attorneys and dismissed the Washington County residents’ testimony as “speculative.”

Instead, she found the testimony “both relevant and probative as to the question of whether the grant of conditional use authorization to EQT for construction and operation of the Bickerton site would adversely impact the health, safety, and general welfare of the residents of Jefferson Borough.”

Todd also noted that Jefferson Hills officials had argued that the previous Commonwealth Court decision required the borough to ignore evidence about what had happened at a similar site – testimony that EQT hadn’t contradicted during the conditional-use hearing.

Justice Sallie Updyke Mundy was the sole dissenter in the Supreme Court decision. She posited her colleagues’ ruling “undermines long-established principles that a municipality may deny a conditional use only if the objectors’ evidence establishes a high degree of probability that the use will cause a substantial threat to the community.

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See Also: Act 13 ruling buoys residents near Trax Farm gas well | Pittsburgh Post-Gazette, February 22, 2014

From the Delaware Riverkeeper

Industry watchers accuse the Penna. judges of bias in this case

From an Article by Dan Zukowski, EcoWatch.com. September 30, 2016

The Pennsylvania Supreme Court has ruled that the state’s controversial Act 13 is unconstitutional, calling it a special law that benefits the shale gas industry. The massive Marcellus Shale formation, which underlies a large area of Western Pennsylvania, provides more than 36 percent of the shale gas produced in the U.S.

The Pennsylvania State Legislature passed Act 13 in 2012 and it was almost immediately challenged by seven of the state’s municipalities along with the Delaware Riverkeeper Network and a private physician. The onerous law enabled natural gas companies to seize privately owned subsurface property through eminent domain, placed a gag order on health professionals to prevent them from getting information on drilling chemicals that could harm their patients, and limited notification of spills and leaks to public water suppliers, excluding owners of private wells that supply drinking water for 25 percent of Pennsylvania residents. Act 13 also pre-empted municipal zoning of oil and gas development.

“The decision is another historic vindication for the people’s constitutional rights,” stated Jordan Yeager, lead counsel on the case representing the Delaware Riverkeeper Network and Bucks County municipalities on the case. “The court has made a clear declaration that the Pennsylvania legislature cannot enact special laws that benefit the fossil fuel industry and injure the rest of us.”

On Dec. 19, 2013, the state Supreme Court issued a narrow ruling on the grounds that the law violated the Environmental Rights Amendment of the Pennsylvania Constitution. That ruling returned local zoning rights to municipalities. It also ordered the state Commonwealth Court to reconsider other provisions. The ruling by the Supreme Court issued Wednesday addresses those rulings and should end the litigation.

The state Supreme Court held that the gag order and exclusion of private wells from notification were all unconstitutional. The ruling prohibits the state Public Utility Commission from having oversight on local ordinances and from withholding certain payments from municipalities that limit shale gas drilling.

In its ruling, the state Supreme Court wrote that the eminent domain provision of Act 13 “is unconstitutional on its face, as it grants a corporation the power of eminent domain to take private property for a private purpose, in violation of the Fifth Amendment of the United States Constitution and Article I, Sections 1 and 10 of the Pennsylvania Constitution.”

“A majority of our state legislators joined with the oil and gas industry in placing corporate desires and profits over the constitutional rights of Pennsylvania citizens,” said John Smith, the attorney who represented four Western Pennsylvania municipalities in the case. “The Pennsylvania Supreme Court correctly found that the constitution is not a document to be ignored.”

The gas industry appeared to shrug it off. “It’s not a big deal in the grand scheme of things,” said energy attorney Michael Krancer, referring to the court’s decision. Krancer was secretary of the Pennsylvania Department of Environmental Protection when the law was passed.

The industry-side Marcellus Drilling News pulled no punches in its reaction to the ruling. They called the plaintiffs “seven selfish towns” (twice in one paragraph) and blamed the ruling on “four left-wing Democrat judges.” But even they admitted that, for all practical purposes, Act 13 is now dead.

See also: www.FrackCheckWV.net