Protect PT appeals fracking well-pad approvals to Pa. Supreme Court

May 21—The citizen group Protect PT's argument for why zoning hearing board decisions allowing additional gas well fracking in Penn Township should be overturned contained a number of elements, but focused on a central question.

Should a legal body be permitted to simply declare that an expert witness's testimony is not credible without giving reasons to back up that position?

Protect PT attorney Tim Fitchett of Fair Shake Environmental Legal Services made his case in an appeal heard this week by the state's Supreme Court, and much of it regarded the Penn Township Zoning Hearing Board's "credibility determination" for one of Protect PT's expert witnesses in its original challenge, Dr. Walter Tsou.

"The precedent set by the Commonwealth Court gives a lot of deference to the fact-finder, and says that credibility determinations cannot be overturned," Fitchett told the court on Wednesday. "Expert testimony can be completely thrown to the side under the auspices of a pretextual credibility determination, and avoid any meaningful appellate review, which I think is exactly what Judge (Patricia) McCullough was concerned about in her (Commonwealth Court appeal) concurrence."

Justice Max Baer said he felt Fitchett was "attacking the foundation of appellate law in the United States."

"I don't know that you're going to overcome the credibility assessment from the board," Baer said. "You're not arguing that it was unfair or biased. I think you're, respectfully, Don Quixote-tilting at a windmill here."

Fitchett said there should be a "meaningful explanation" as to why evidence wasn't reviewed.

"When it comes to scientific evidence that was presented, I think that there is an inherent credibility to those studies that does warrant more than just a cursory, 'We did not find this evidence credible,'" Fitchett said. "You're taking peer-reviewed studies that have passed numerous levels of review by other scientists in the field, only for a zoning hearing board to just say, 'Well, I didn't believe it.'"

Justice Christine Donohue pointed out that the issue in Fitchett's appeal brief "is something you've never raised anywhere else in your case, which is that the board's finding of fact was not sufficient," she said. "That's not a bad argument. But nowhere else have you made that argument. I'm struggling with what precisely is the issue you want us to correct."

Justice David Wecht said he did not understand what made Protect PT's case different from many other zoning hearing cases.

"They believed (the other side's expert) over Tsou. These are the kinds of judgments these boards make all the time," Wecht said. "But you are implying that there was something else going on. And it's not enough to just come to this court and say, 'There was dirty business here.' It's not enough to just say, 'This was really bad, Dr. Tsou is a great guy, it's not fair that he wasn't believed.'"

Fitchett said he believes the zoning hearing board capriciously disregarded Tsou's testimony. Baer said he felt Protect PT's problem was a political one.

"The township set aside 10% its land for fracking. Your client is opposed to all fracking, all the time," Baer said. "And I don't think anyone found your evidence uncredible. Your expert is qualified. But he's 100% against fracking, all the time. I guess what I'm saying is that it's not accurate to say your evidence was not found credible. But it did not meet the requirement to overcome a special exception."

Blaine Lucas, attorney for Canonsburg-based Olympus Energy, which proposed the wells that are the subject of the appeal, said Protect PT simply doesn't like the legislative decisions made by Penn Township.

"From my client's perspective, those decisions are very strict," Lucas said. "This is just an improper attempt to override the decision these bodies made, and a backdoor attempt to relitigate (Protect PT's) substantive validity challenge."

The court did not render a decision.

Patrick Varine is a Tribune-Review staff writer. You can contact Patrick at 724-850-2862, pvarine@triblive.com or via Twitter .