Washington County Common Pleas Court Judge Paul Pozonsky said Wednesday he plans to rule by the end of next week on an injunction request filed by Peters Township to not place the , proposed by the Marcellus Shale Awareness and Action organization, on the Nov. 8 election ballots.
Members of the Marcellus Shale Awareness group filed a petition with more than 2,400 names to amend the Home Rule Charter, to include a bill of rights and incorporate a ban on gas drilling within township boundaries.
Pozonsky said he hopes to have the ruling in time for any appeals that may result from his decision. According to Washington County Solicitor Mary Lynn Drewitz, the county elections office would like the decision before Oct. 12.
Drewitz, who appeared at the hearing on Wednesday morning, told Pozonsky that the “drop dead date” for a decision is Oct. 17.
She told the judge that printing has begun for all general election ballots, but the Peters Township ballots are on hold, pending the outcome of the hearing.
Several dozen observers were in the courtroom as Peters Township Solicitor William Johnson argued that the placing of the question on the ballot would be illegal, and would subject the township to lawsuits from individuals and gas companies. He also pleaded that it would be a violation of the Pennsylvania Oil and Gas Act, as well as causing the township’s drilling ordinance to be nullified.
Arguing for the Marcellus Shale Awareness group was Jules Lobel, an attorney from the University of Pittsburgh, who is working pro-bono for the group.
He disagreed with the township’s position, stating that the courts do not have jurisdiction in pre-election matters.
Lobel stated that currently there is no drilling and are no drilling permits issued in the township, and that placing the question on the ballot would not cause any harm.
“If the referendum passes, the council has remedies,” Lobel stated.
Both attorneys cited court decisions on ballot questions in Mt. Lebanon and Deer Creek that were eventually struck down. Lobel argued they did not apply to the proposed question in Peters Township.
“The threshold question is, 'What is the harm to place the question on the ballot?'" he said.
Pozonsky asked the two sides and said he intends to review both sides of the argument to make his ruling.
“I think it's speculative to assume that there will be lawsuits if this issue is passed,” Lobel said, post-hearing. “Everybody expected lawsuits in Pittsburgh, and it hasn’t happened. If it does happen, we’ll be prepared to defend it.”
Lobel said he believes there is no harm of placing the question on the ballot for voters to decide.
“Not only is there no harm for that, it’s a basic democratic principle,” he said. “The only way for it to be dropped is if there is an actual pending injury, and there is not.”
Lobel said the question is constitutional because it allows voters to have the right to clean water.
“It’s the citizens’ attempt to enforce their basic constitutional right to clean water," he said. "This drilling is going to destroy that right in Peters Township."
Johnson reiterated his position of the question itself placing the township in a dangerous position.
“If this is passed on the ballot it would place the township in immediate violation of the Oil and Gas Act, the Municipalities Planning Code and various Supreme Court decisions that allow for the extraction of oil and gas,” he said.
“We’re not here advocating for the gas industry, but we believe that we’ve adopted reasonable regulations within the parameters we are allowed. The effect of what’s been proposed in the charter amendment would be to repeal those and place the township in an immediately vulnerable position.”
Johnson said he understands Pozonsky's question of what harm would result from placing the question on the ballot.
“I understand his position, and it is an issue that the court has to address—there is a significant jurisdictional issue here," he said.
“But we think there is a cloud placed over the township by this being on the ballot, and if passed would place the township in an immediately illegal position. For that reason we think the court should grant the injunction.”
Pozonsky told Johnson and Lobel to have any other arguments and materials presented to him by Monday, and that he intends to make a ruling on the case by the end of next week.
“I don’t intend to delay on making a decision,” he said.
Stay tuned to Peters Patch for working details.