The Pennsylvania Oil and Gas Law contains a pre-emption provision intended to prevent local municipalities from enacting ordinances that regulate oil and gas drilling and operations. As advances in technology permitting horizontal drilling and hydraulic fracturing have made extraction of natural gas from the Marcellus Shale physically and economically viable in Pennsylvania, local municipalities across the state have been amending their zoning ordinances to regulate drilling activities. Although most municipalities already have mineral regulations in their zoning ordinances, these primarily address coal mining, and do not take into account all the issues presented by the Marcellus Shale drilling.
As municipalities enact amendments to their zoning ordinances, they have to be careful not to regulate in areas preempted by state law and regulated by the Department of Environmental Protection. Overly restrictive zoning ordinances may be challenged on constitutional grounds as exclusionary zoning, an illegal tax or penalty, an unconstitutionally vague restriction, a denial of drillers’ due process rights, or a regulatory taking without just compensation.
