As promised, I have a legal opinion on Rush Township's proposed ordinance that would limit gas drilling. A day late, but hopefully worth the wait.
According to Penn State law professor Ross Pifer:
"The proposed ordinance ... certainly puts the municipality in a better position to defend against a legal challenge than would a complete ban on drilling in the township, but I am still uncertain that such an ordinance would ultimately survive a court challenge. The relevant inquiry is whether this proposed ordinance would regulate 'the same features of oil and gas well operations' that are regulated by the Pennsylvania Oil and Gas Act or 'accomplish the same purposes' as set forth in the Oil and Gas Act. If so, the ordinance would be preempted by state law (section 602 of the Oil and Gas Act)."
The main argument made by the township solicitor and supervisors in favor of their ordinance was that it could act legally to protect the constitutional rights of its citizens to clean water and health. Pifer directly countered that legal position:
So there you have it. I have calls in to some of the companies involved in drilling in Rush Township to see what they think of the proposed ordinance. I have also asked them if they plan on challenging it if it passes. I'll post here as soon as I hear from them.
Acting to protect the constitutional rights of township citizens would not enable the municipality to bypass the preemptive provisions of section 602. One of the expressed purposes in the Oil and Gas Act is to '[p]rotect the natural resources, environmental rights and values secured by the Pennsylvania Constitution.' Thus, the General Assembly already has considered Pennsylvania citizens' constitutional rights to clean water when it enacted the Oil and Gas Act."