Land Use Planning

Pipelines and Informed Planning Alliance(PIPA)

Land use planning recommendations published by PHMSA as PIPA (Pipelines and Informed Planning Alliance) developed practices to help in making decisions about what, where and how to build safely near transmission pipelines.  In an ongoing US DOT PHMSA TAG, the Chester County Commissioners will be releasing Pipeline Notification Protocol (PNP), a set of notification recommendations for pipeline operators to use when a new pipeline, expansion or maintenance is proposed in Chester County.  PNP is based on PIPA recommendations, including Consultation Zones.

Used in PNP, Consultation Zones provide mechanisms for communication between property developers/owners and operators when a pipeline operator is mapping a preferred route as well as when new land uses and property developments are being planned.  

Local Pipeline Safety Laws/Model Ordinances

Local laws and ordinances for siting and safety vary state to state, depend upon a state’s governing structure and the classification of a pipeline (interstate, intrastate, class of gathering and distribution).  PHMSA’s website provides a window for state by state specific information.
    
Pipeline safety regulation is achieved by federal and state agencies partnering with states; states assume all or part of the intrastate regulatory and enforcement responsibility through annual certifications and agreements with PHMSA. Intrastate facilities may include gas distribution, gas transmission and hazardous liquid transmission pipelines, as well as gathering lines, storage fields, and LNG facilities. Due to the vast size of the gas distribution pipeline system the majority of pipeline inspections are carried out by state inspectors.   

Land Use Planning in a Commonwealth

As a Commonwealth, Pennsylvania’s history of local land use ordinances is documented in the  MPC (Municipal Planning Codes) established in the late 1960's.  Codes were strengthened with 2005 amendments and allow for local authority in a state with profoundly diverse geography.  The Commonwealth of Pennsylvania consists of municipalities, cities, boroughs, townships and villages, therefore requiring zoning specific to each entity.    

In the early years of Marcellus Shale drilling, the drilling industry argued that maintaining local authority in gas operations in Pennsylvania was tantamount to requiring a different drivers license in each municipality/township, etc.  They produced a list of acceptable terms for crafting legislative language under which the Industry would continue to work in Pennsylvania.  The list was made public.    

Act 13, The Act Amending Title 59 (Oil and Gas) of the Pennsylvania Consolidated Statutes was signed by Governor Tom Corbett on February 14, 2012, went into effect on April 14, 2012 and included the lion’s share of Industry terms including: 
  1. A ceiling on severance fees
  2. Evisceration of municipal zoning authority, in all zones, for all gas operations except processing plants
  3. Beyond land use planning, Act 13 extends to what some term a gag order on doctors.  Under penalty of loosing their license, a doctor may not discuss the source of a patient's illness with the patient, nor with colleagues, should patient test results potentially connect the illness to chemicals involved in fracking.   

Legal challenges to Act 13 evisceration of municipal zoning was filed by Pennsylvania NGOs  based on constitutionality and direct conflict with PA MPC.    In July 2012, the Commonwealth Court declared this part of Act 13 unconstitutional.  After the Commonwealth Court issued an injunction blocking implementation of Act 13’s zoning provisions, the Pennsylvania Public Utility Commission (PA PUC) sought to implement the Act by reviewing municipal zoning ordinances.  In October 2012, the Commonwealth Court ordered the Pennsylvania Public Utilities Commission (“PUC”) to “cease and desist” from implementing certain parts of Act 13, specifically the provisions under which the PUC would have a role in reviewing and approving municipal zoning ordinances.  The PUC appealed that order, and the Delaware Riverkeeper Network and other plaintiffs opposed the PUC’s appeal.
                          
July 2013, the Pennsylvania Supreme Court “quashed” the PUC’s appeal of the October order.  The result is that the Court will not be reviewing the Commonwealth Court’s October order directing the PUC to halt implementation of the Act.  No opinion accompanies the order. As a result the PUC cannot review local zoning ordinances under Act 13 while the Supreme Court determines whether to uphold the Commonwealth Court’s decision finding Act 13 unconstitutional.  Land Use Planning and Transmission Pipelines.