Thursday, July 11, 2019

Shale Law in the Spotlight – Pennsylvania Supreme Court Rules that Residents of Neighboring Municipality Can Provide Testimonial Evidence in Land Use Hearing on the Impacts of Natural Gas Drilling

Case Summary: EQT Production Company et al. v. Borough of Jefferson Hills, No. 4 WAP 2018

Written by Chloe Marie – Research Specialist

On May 31, 2019, the Supreme Court of Pennsylvania issued an opinion addressing whether residents living in neighboring municipalities can provide testimonial evidence at a land use public hearing about the impacts of unconventional natural gas drilling. The Supreme Court concluded that such evidence may be considered by the municipality in the granting of conditional use approval for a natural gas drilling operation.

Factual Background

In September 2015, EQT filed an application with the Borough of Jefferson Hills, Allegheny County, for conditional use approval of a proposed project involving the construction and operation of a natural gas production complex at the Bickerton well site located within the Borough.

In November 2015, the Borough Council carried out a public hearing on the application as required pursuant to the Municipalities Planning Code. Some of the individuals who provided testimony at the hearing did not live within the Borough, but rather lived in neighboring Union Township, Washington County, near the Trax Farm well site. During their testimony, these individuals reported about their personal experiences with EQT’s drilling and operational practices at the Trax Farm well site and discussed their perceptions of how EQT’s activities had affected their health and quality of life as well as their community’s environment. They complained at the hearing that EQT’s drilling activities at the Trax Farm site resulted in a wide range of adverse impacts, including actual damage to and interference with the use and enjoyment of their properties, concerns related to air pollution and water quality, and other health issues. After hearing this testimony, the Borough Council denied EQT’s application. The Council concluded that even though EQT had complied with the general standards for the grant of a conditional use application as set forth in Section 1003(b)-(f) of the Borough’s Zoning Ordinance and the specific requirements under the Borough’s Zoning Code, EQT did not meet its burden of proof for a conditional use permit because the evidence showed that “permitting the proposed natural gas production facility as a conditional use does not protect the health, safety and welfare of the Borough and its residents as required by the objective standards of the Borough Zoning Ordinance Section 1003(a).” EQT appealed the Council’s decision to the Court of Common Pleas of Allegheny County.

EQT’s Appeal to the Court of Common Pleas

The Court of Common Pleas reversed the Council’s decision denying the conditional use application. The court concluded that because EQT met all of the requirements and standards under the Borough’s Zoning Ordinance and Zoning Code, the burden of proof then shifted to the objectors to prove that the proposed use would negatively impact the general public. The court found that the objectors had failed to satisfy their burden of proof as their testimony was merely “speculative.” The Borough appealed this decision to the Pennsylvania Commonwealth Court.

Borough’s Appeal to the Commonwealth Court

The Commonwealth Court affirmed the order of the Court of Common Pleas reversing the Council’s decision. In so doing, the Commonwealth Court agreed with the lower court on the speculative nature of the objectors’ testimony. The court declared that the testimony “about problems at the Trax Farm site and the general harms posed by drilling activities and operation of unconventional wells [are deemed] insufficient to prove that the development of the Bickerton site would have a negative impact on the public health, safety, and welfare which was greater than that normally associated with any other unconventional well site.” The Borough then filed an appeal with the Supreme Court of Pennsylvania, which the court agreed to hear.

The Supreme Court Ruling

Before the Supreme Court, the Borough argued that the Commonwealth Court’s decision disregarded the probative value of the objectors’ testimony merely due to geographical considerations and pointed out that the testimony “was highly relevant to their burden to show that the proposed Bickerton site would adversely affect the health, safety, and welfare of the residents of the Borough, given that the Trax Farm site was ‘similar’ to the proposed Bickerton site and that Union Township and the Borough share a common municipal border.” The Borough raised its concerns that this would set a “draconian” standard for the admissibility of testimony at a land use hearing by ruling out testimony that would otherwise be considered relevant and credible. Furthermore, the Borough contended that such a standard would be “unworkable” in cases involving municipalities that had no experience with unconventional drilling activities within their boundaries where evidence of past similar practices in other municipalities could be useful. In addition, the Borough claimed that the Commonwealth Court’s decision would infringe upon the ability of municipalities to examine the past practices and conduct of an applicant in order to ensure the health, safety, and welfare of its citizens.

In response, EQT contended that the Commonwealth Court did not consider the objectors’ testimony to be inadmissible but rather found it “legally insufficient” to meet the objectors’ burden of proof that such project at the Bickerton site would endanger the health, safety, and welfare of the community. Most of all, EQT argued that the objectors did not present proper evidence as they mentioned only their  experiences with the Trax Farm site, rather than providing testimony regarding the Bickerton site. In addition, EQT alleged that “none of the witnesses who testified to their experiences with the Trax Farm site were qualified to render an expert opinion regarding potential community impacts from the Bickerton site, or whether EQT’s operations there would comport with the Borough ordinance.”

In its analysis, the Supreme Court explained that local municipalities should not be required to follow technical rules of evidence when conducting hearings as they have a primary duty to guarantee the protection of their citizens. Thus, local municipalities should endeavor to consider “all relevant evidence of reasonably probative value.” The court declared that the lower court’s characterization of the objectors’ testimony as “speculative” was inaccurate, and the court gave particular “credence to the Borough’s concern that the panel decision in this matter will be interpreted as a categorical bar to the admissibility of this type of firsthand experiential evidence in future conditional use hearings.”

The court relied upon Visionquest National Limited v. Board of Supervisors of Honey Brook Township, 569 A.2d 915 (Pa. 1990), for the proposition that evidence relating to past conduct and practices of an applicant for conditional use approval is relevant and probative in determining whether the applicant’s project would cause adverse impacts to the health, safety and welfare of the community. Although the Visionquest case involved past actions within the same municipality, the court found that it applied to the testimony related to the Trax Farm site as it found “a significant degree of similarity between the nature of the proposed land use at the Bickerton site and the present use of the Trax Farm site.” Because the Bickerton well site is proposed to have similar operations to those at the Trax Farm site and will be constructed and operated by the same company, the court concluded that the objectors’ testimony was  sufficient regarding the impacts that Borough residents may experience.

Consequently, the Pennsylvania Supreme Court vacated the order of the Commonwealth Court and remanded this matter for further consideration in light of this opinion.


This material is based upon work supported by the National Agricultural Library, Agricultural Research Service, U.S. Department of Agriculture.

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