Protect PT Defends Due Process in Penn Township Zoning for Fracking Well Pads

(From right to left): Gillian Graber, John Smith Esq., Abigail Briggs Esq., and Michelle Klingensmith at the Commonwealth Court.

On November 6, 2024, Protect PT argued at the Commonwealth Court in downtown Pittsburgh in two cases about fracking wells in Penn Township. In each, Protect PT defended the right of Penn Township’s residents to transparency and due process when the Township approves fracking wells that risk harm to the community’s air and water. Protect PT is hopeful that the Commonwealth Court will equally enforce the law and require up-to-date zoning decisions for fracking infrastructure.

At the Aphrodite well pad, Olympus Energy, which has been bought by EQT, originally told public officials in 2022 that there were no streams next to the proposed well locations. But in 2023, Olympus discovered that a stream ran nearby to the well pad that Olympus hadn’t known of before. Olympus was required to move the Aphrodite well pad location 178 feet away from the original location, requiring a new Land Development Plan and new permits from the Department of Environmental Protection for new wells. But at the very same time, EQT wants to stop residents from attending a hearing on a special exception to see if the new well location actually complies with requirements under Penn Township’s zoning ordinance.

EQT claims that this 178-foot change won’t impact the environment around the site, without any record to show this. But when asked by the Commonwealth Court, EQT admitted that, without a full hearing for a special exception, it’s possible that EQT could be missing new details about impacts from the Aphrodite well pad — just like EQT missed a stream near its original well pad location. Without a hearing, there is no way for Penn Township’s residents to bring these details to light and require EQT to show that its current fracking plans will not damage the environment. Protect PT is committed to making sure every resident of Penn Township can challenge new plans to place more fracking wells in their community.

At the Draftina well pad, Apex Energy, which has been bought by CNX, sued Penn Township back in 2016 to force Penn Township to allow multiple fracking wells that Penn Township’s Zoning Hearing Board had rejected because of their harm to the local environment. Because of the threat of hundreds of millions of dollars in litigation costs, Penn Township agreed to let Apex Energy build multiple fracking well pads that the Zoning Hearing Board had concluded violated Penn Township’s zoning ordinance. But even under that agreement, Apex Energy had to follow the rules for special exceptions in Penn Township. 

Normally, special exceptions only last two years if land owners don’t act to develop their property like a special exception allows. Apex didn’t build the Draftina wells after it got special exceptions in 2017, so they expired in 2019. Now, CNX wants a private agreement with Penn Township to override Penn Township’s own laws and make that special exception last forever, no matter what the law says. This would create a loophole for Penn Township to give private companies a permanent veto over Penn Township’s laws whenever a powerful enough industry brings a lawsuit. Even worse, it would permanently disempower local residents and strip them of their right to object to harmful infrastructure near their property. 

The Commonwealth Court seemed to recognize how dangerous this argument would be. It correctly noted that even the consent order required compliance with Penn Township’s ordinance, including the two-year expiration of special exceptions. Penn Township expressed that it believes “its hands are tied” on this issue because of this consent agreement. With help from Protect PT’s legal team, hopefully the Commonwealth Court can untie them.

In both cases, Protect PT was represented by the skilled counsel at Smith Butz, LLC. Complicated cases like these, spanning multiple years and multiple courts, require substantial resources. Please consider making a donation to Protect PT or becoming a member to support our work defending the local environment in Westmoreland and Allegheny counties from the harms of fracked gas infrastructure.

— Dylan Basescu, PPT Staff Attorney