The strategy behind an anti-drilling amendment

Posted on November 4, 2011 

Rush Township solicitor David Mason thinks he's found the magic bullet: an amendment to the township's Subdivision and Land Development Ordinance that will limit Marcellus Shale drilling and discourage lawsuits from gas companies.

His theory? A full drilling ban, as is also being discussed by the township supervisors, will likely bring on the lawsuits hot and heavy.

"If we attempt to ban drilling in 145 square miles," Mason said, referring to the entire township, "we're certainly going to get challenged."

A better option, he argued, was the solution he had crafted following a request from the township supervisors. The SALDO amendment "modifies the definition of land disturbance, establishes the procedure for identifying zones of contribution to discharging water wells, and prohibits within the township such land disturbance within any zone of contribution for a municipal or community public water supply, and provid(es) penalties for violation."

Sorting out the legalese, the amendment would provide protection for source-water protection zones -- areas deemed most sensitive to potential contamination.

Here's Mason explaining the rationale behind the SALDO amendment:

"If we attempt to ban drilling in areas that may already be off-limits by virtue of a denial of a Department of Environmental Protection permit, then perhaps the cost isn't so great, and I would expect anybody that would attempt a challenge would do a cost-benefit analysis, and if a certain portion of the area in which we will ban fracking is already limited by the DEP, then that reduces the likelihood of a challenge."

Essentially, Mason is arguing that the township can hide behind the DEP's regulatory strength, carving out some additional portions of land to lump in with areas preemptively protected by the state agency. Drillers will realize it will be cheaper for them to eat the cost of their now-useless leases than to pay the cost of suing -- even though they would likely win -- to drill on what will probably amount to a sliver of their overall leaseholdings in the state.

It's a trade-off, Mason said, explaining his rationale to attendees of a supervisors meeting last month.  There's a greater possibility of protecting some of Rush Township's land from drilling with the amendment, but a portion of the township will not be protected.

The feedback I've gotten from Rush for Clean Water members is that they'd rather attempt to shoot the moon with a complete ban, hoping drillers would prefer to walk away rather than suffering through the "PR nightmare" -- as one member put it -- of challenging residents' constitutional rights to clean and water.

But for others in the township, and for those thousands whose source-water originates there, protection of some land may be better than no protection at all. Mason has studied how other townships' attempts to limit drilling have failed, and has come up with a never-been-tried approach that he thinks might just work.

"What we're attempting to do is essentially break new ground," Mason said.

With the current board of supervisors leaning toward supporting the amendment rather than the ban, Mason's theory will probably be tested soon.

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