Unconventional Natural Gas Wells; Evaluation of Cumulative Impacts

Protect PT v. Penn Twp. Zoning Hearing Bd., 2020 WL 3639998 (Pa. Cmwlth.) (unreported), allocatur granted Jan. 5, 2021, appeal dockets 2 & 3 WAP 2021

The Pennsylvania Supreme Court granted allocatur in this case to determine the court’s role in evaluating zoning approval for unconventional well projects.

This case arises from the Penn Township Zoning Hearing Board’s grant (subject to a number of conditions) of Olympus Energy LLC’s special exception application to develop unconventional gas wells at its Metis Well Pad in Penn Township.  Protect PT participated in the Board’s hearing, where it presented expert and lay witness evidence regarding the cumulative impacts of developing multiple unconventional natural gas wells in close proximity to residential neighborhoods creating high probability of adverse, abnormal or detrimental effects on public health, safety and welfare and significantly altering the character of the community. However, the Board concluded that Olympus  “produced evidence to show that its operation, subject to certain conditions, will satisfy the requirements of Article VI, § 190-641(D) of the Ordinance and Article I, Section 27 of the Pennsylvania Constitution,” and that Protect PT, the Objector, “failed to establish sufficient, credible evidence that if [ ] Applicant has been found to have met the Ordinance requirements and the application is granted, with conditions, that the said use would create a high probability that an adverse, abnormal or detrimental effect will occur to public health, safety and welfare.” Slip op. at 11. The trial court affirmed the Board’s decision without taking additional evidence and Protect PT appealed to Commonwealth Court.  

Commonwealth Court affirmed the trial court’s order based on its disposition of Protect PT’s claims  raised in its appeal in Protect PT v. Penn Township Zoning Hearing Board (Pa. Cmwlth., No. 575 C.D. 2019, filed July 6, 2020), which related to the Board’s grant of Applicant’s application for a special exception to develop unconventional gas wells at its Gaia Well Pad site in the Township, subject to a number of conditions.

Judge McCullough concurred in the majority’s result “because faithful adherence to our prevailing precedent compels it.” Slip op. at PAM-1, citing Protect PT v. Penn Township Zoning Hearing Board, 220 A.3d 1174 (Pa. Cmwlth. 2019); Frederick v. Allegheny Township Zoning Hearing Board, 196 A.3d 677 (Pa. Cmwlth. 2018) (en banc), appeal denied, 208 A.3d 462 (Pa. 2019). However, Judge McCullough expressed her concern “that judicial review in matters such as the one presently before the Court has been severely reduced to a point where this Court functions merely to ascertain whether a zoning hearing board found the objector’s evidence credible.” Slip op. at PAM-1 – PAM-2. Specifically, Judge McCullough explained:

Here, Protect PT (Objector) presented both layperson and expert testimony. Most significantly, one expert based his opinion on peer review literature and an analysis of the specific details of the Metis Well Pad construction and its capabilities and opined that the Township and its residents would suffer detrimental harm. See Reproduced Record (R.R.) at 667a-82a.

I do not in any way—and I emphasize any—suggest that the Penn Township Zoning Hearing Board (or any board) has not, cannot, and will not assume and fulfill their tremendous responsibility as a fact finder in the most honorable and principled manner. My concern, instead, lies in the legal framework employed to address, analyze, and dispose of the issues discussed above.

Slip op. at PAM-2.

The Pennsylvania Supreme Court granted allocatur, limited to the following issues:

 (1) Whether the Commonwealth Court’s opinion conflicts with the Court’s previous application of the capricious disregard of evidence standard and creates an issue of such substantial public importance as to require prompt and definitive resolution by this Honorable Court?

(2) Whether the Commonwealth Court’s failure to meaningfully evaluate the cumulative impacts of developing multiple unconventional natural gas wells in close proximity to residential neighborhoods creating high probability of adverse, abnormal or detrimental effects on public health, safety and welfare and significantly altering the character of the community was an abuse of discretion which creates a question of first impression of such public importance which requires this Honorable Court’s prompt and definitive resolution?

For more information, contact Kevin McKeon or Dennis Whitaker.