As reported in last week's Wall Street Journal, challengers to natural gas drilling in Peters Township, Pennsylvania are taking a new approach: township residents will vote this fall on an initiative seeking to ban drilling in the Marcellus Shale basin that amends the township's home rule charter on the ballot. This is believed to be the nation's first voter initiative seeking to ban fracking activity. The amendment to the Peters Township home rule charter was drafted by the Community Environmental Legal Defense Fund, the same organization that drafted the City of Pittsburgh's ordinance banning natural gas drilling. The Peters Township charter amendment contains some of the same subject-to-challenge provisions as the City of Pittsburgh ordinance, including provisions that purport to deny corporations their rights under the commerce and contracts clauses of the United States and Pennsylvania constitutions and the right to challenge the Peters Township charter amendment in court. Moreover, a drilling ban ordinance substantially similar to the Peters Township charter amendment, and drafted and advocated by the same advocacy group, was struck down by the U.S. District Court for the Western District of Pennsylvania in a case involving another Washington County municipality, Blaine Township.
More than 100 towns in the state have already passed ordinances related to drilling. But the drilling industry argues that complete bans are pre-empted by state mineral extraction laws. Moreover, Peters Twp is attempting to ban drilling through an amendment to its home rule charter. Under the Pennsylvania Home Rule Charter and Optional Plans Law (Home Rule Law), a municipality that has adopted a home rule charter may exercise any powers and perform any function not denied by the Constitution of Pennsylvania, statute or by its home rule charter. Here, Peters Township's attempt to ban the exploration and production of natural gas through an amendment of its home rule charter is subject to challenge because such a ban is a violation of the Home Rule Law. Under the Home Rule Law, a municipality may not exercise powers that are contrary to, or in limitation or enlargement of, powers granted by statutes applicable in every part of the state. For instance, the Pennsylvania Oil and Gas Act is applicable in every part of Pennsylvania, and Peters Township's charter amendment banning the extraction of natural gas would be contrary to the Oil and Gas Act - including the Oil and Gas Act's stated purpose to permit the optimal development of oil and gas resources in Pennsylvania.
Peters Township's proposed charter amendments also rest on shaky legal ground because home rule municipalities may not determine the duties, responsibilities or requirements placed on businesses, occupations and employers. The Peters Township charter amendment, which bans the extraction of natural gas in Peters Township and deprives corporations engaged in the extraction of natural gas rights and protections afforded under the United States and Pennsylvania constitutions, arguably impermissibly regulates businesses and employers by prohibiting an activity that is expressly permitted and regulated by Pennsylvania law.