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Pennsylvania and Federal Law Preempt Municipal Home Rule Charter

October 6, 2017

Lexology,

Garrett D. Trego,

October 4, 2017-

Western District of Pennsylvania Magistrate Judge Susan P. Baxter reiterated in an opinion issued last Friday that certain municipal laws prohibiting natural gas drilling are preempted by the federal Safe Drinking Water Act and the Pennsylvania Oil and Gas Act. Seneca Res. Corp. v. Highland Twp. et al., No. 16-cv-289 (W.D. Pa. Sept. 29, 2017) (“Seneca III”). The decision is the result of a complex procedural and political history in the township, and it reinforced an earlier settlement and consent decree between the same parties. In its opinion, the federal court’s decision provided guidance regarding the interplay among federal, state, and local authority over energy development in Pennsylvania.

The dispute between Seneca and the township originated when in 2014 EPA granted Seneca a permit for an underground injection control well in Highland Township, a town of 492 residents, as of the 2010 census, in Elk County, Pennsylvania. During Seneca’s federal application process, the township adopted a local “community bill of rights ordinance” that prohibited the deposition, storage, treatment, or injection of materials that have been used in the extraction of natural gas into the land, air, or water of the township.

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