On July 26, 2012, the Commonwealth Court of Pennsylvania overturned a Pennsylvania statute preempting the right of local jurisdictions to impose land use restrictions on hydraulic fracturing, or “fracking,” within their boundaries. Unlike courts in the States of Ohio and Colorado, the court in Robinson Township v. Commonwealth of Pennsylvania, et al., 2012 WL 3030277 (2012) held that the Pennsylvania statute violates the “basic precept that ‘land use restrictions designate districts in which only compatible uses are allowed and incompatible uses are excluded.’” Id. at 15, quoting City of Edmonds v. Oxford House, Inc., 514 U.S. 725, 732-33 (1995). Fracking involves the high pressure injection of water and sand carrying certain chemicals into rocks in which is concealed deposits of oil and gas. Residents near fracking sites have complained of, among other things, pollution of the underground water supply, and increasing instability and subsidence of structures undermined by the process. Supporters of the Pennsylvania law claimed that it provides the uniformity of regulation necessary for the successful continuation of Pennsylvania’s relatively new and profitable fracking industry. Critics, however, take the position that removing local restrictions on the fracking would be to undermine decades of rational development, and open the door to the “pig in the parlor” to which the Supreme Court referred in upholding local zoning originally in Euclid v. Ambler, 272 U.S. 365 (1926).
The implication of these differences ranges far beyond Pennsylvania, because, among other reasons, the positions taken over local regulation of fracking do not differ notably from those taken with respect to local regulation of airport impacts.
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