Marcellus Shale Coal. v. Dep't of Envtl. Prot. of Pa.

193 A.3d 447

The MARCELLUS SHALE COALITION, Petitioner

v.DEPARTMENT OF ENVIRONMENTAL PROTECTION of the Commonwealth of Pennsylvania and Environmental Quality Board of the Commonwealth of Pennsylvania, Respondents

No. 573 M.D. 2016

Commonwealth Court of Pennsylvania.

Argued December 6, 2017

Decided August 23, 2018

Jean M. Mosites, Pittsburgh, for petitioner.

Michael A. Braymer, Assistant Counsel, Meadville, for respondents.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge

OPINION BY JUDGE WOJCIK

Before this Court is the Marcellus Shale Coalition's (Coalition)¹ Application for Partial Summary Relief (Application) seeking summary relief on Count I of its Petition for Review in the Nature of a Complaint Seeking Declaratory and Injunctive Relief (Petition). In Count I, the Coalition challenges recently promulgated regulations related to unconventional oil and gas well operations contained in Title 25, Chapter 78a of the Pennsylvania Administrative Code (Chapter 78a Regulations), namely, Section 78a.15(f) and (g) and certain definitions in Section 78a.1 pertaining to public resources,² 25 Pa. Code § 78a.15(f)-(g), 78a.1 (referred to generally as the Public Resource Regulations). For the reasons that follow, we grant the Application in part with respect to the challenged definitions, as well as Section 78a.15(g)'s mandate regarding consideration of comments and recommendations submitted by municipalities, which we declare as void and unenforceable, and deny the Application in all other respects.

I. Background

The Environmental Quality Board (Board) published the Chapter 78a Regulations in the Pennsylvania Bulletin on October 8, 2016, which immediately went into effect. 46 Pa. B. 6431 (2016). The Chapter 78a Regulations relate to surface activities associated with the development of unconventional wells.

On October 13, 2016, the Coalition filed its Petition against the Board and the Department of Environmental Protection (Department) (collectively, the Agencies) seeking pre-enforcement review of the Chapter 78a Regulations. The Coalition asserts seven counts and requests declaratory relief pursuant to the Declaratory Judgments Act.³

In Count I, the Coalition challenges the validity of Section 78a.15(f) and (g) pertaining to public resources and the related definitions contained in Section 78a.1 of the Chapter 78a Regulations. The Coalition claims that Section 78a.15 injects an entirely new pre-permitting process without statutory authority. It challenges the attendant definitions of "other critical communities," "common areas of a school's property," "playground," and "public resource agency" in Section 78a.1.⁴

Contemporaneous with the Petition, the Coalition filed an application for expedited special relief to preliminarily enjoin the Department's enforcement of the Chapter 78a Regulations to prevent immediate, substantial and irreparable harm to the Coalition and its members. On November 8, 2016, following an evidentiary hearing,⁵ this Court granted in part and denied in part the Coalition's application, preliminarily enjoining portions of the Chapter 78a Regulations challenged. With regard to Count I, this Court enjoined application of the Public Resource Regulations "only to the extent that they include ‘common areas o[f] a school's property or a playground’ and ‘species of special concern’ as ‘public resources’ and include ‘playground owners’ in the definition of ‘public resource agency.’ " Preliminary Injunction Order, 11/8/16, at 1-2.

The Agencies appealed the Preliminary Injunction Order to the Pennsylvania Supreme Court. The Supreme Court affirmed in part and reversed in part. Marcellus Shale Coalition v. Department of Environmental Protection , ––– Pa. ––––, 185 A.3d 985 (2018). Of relevance here, the Supreme Court affirmed the grant of preliminary injunctive relief as to Count I on the basis that the Coalition raised a substantial legal issue in relation to the Public Resource Regulations and satisfied the other prongs for injunctive relief. Id. at 987-90.

Meanwhile, in this Court, the Agencies jointly responded to the Petition. We entered a Case Management Order requiring fact and expert testimony to conclude by January 31, 2018, and directing the filing of all dispositive motions by February 28, 2018.⁶ See Commonwealth Court Order, 7/12/17.

On August 31, 2017, the Coalition filed the present Application seeking summary relief on Count I of the Petition.⁷ The Agencies filed an answer in opposition. The parties then filed briefs in support of their respective positions. In addition, amici curiae⁸ filed briefs in support of the Agencies' position. On December 6, 2017, this Court sitting en banc heard argument on the Application.

II. Public Resource Regulations

We begin by setting forth the regulations at issue. Section 78a.15(f) of the Chapter 78a Regulations, which sets forth application requirements, provides:

(f) An applicant proposing to drill a well at a location that may impact a public resource as provided in paragraph (1) shall notify the applicable public resource agency , if any, in accordance with paragraph (2). The applicant shall also provide the information in paragraph (3) to the Department in the well permit application.

(1) This subsection applies if the proposed limit of disturbance of the well site is located:

(i) In or within 200 feet of a publicly owned park, forest, game land or wildlife area.

(ii) In or within the corridor of a State or National scenic river.

(iii) Within 200 feet of a National natural landmark.

(iv) In a location that will impact other critical communities .

(v) Within 200 feet of a historical or archeological site listed on the Federal or State list of historic places.

(vi) Within 200 feet of common areas on a school's property or a playground .

(vii) Within zones 1 or 2 of a wellhead protection area as part of a wellhead protection program approved under § 109.713 (relating to wellhead protection program).

(viii) Within 1,000 feet of a water well, surface water intake, reservoir or other water supply extraction point used by a water purveyor.

(2) The applicant shall notify the public resource agency responsible for managing the public resource identified in paragraph (1), if any. The applicant shall forward by certified mail a copy of the plat identifying the proposed limit of disturbance of the well site and information in paragraph (3) to the public resource agency at least 30 days prior to submitting its well permit application to the Department. The applicant shall submit proof of notification with the well permit application. From the date of notification, the public resource agency has 30 days to provide written comments to the Department and the applicant on the functions and uses of the public resource and the measures, if any, that the public resource agency recommends the Department consider to avoid, minimize or otherwise mitigate probable harmful impacts to the public resource where the well, well site and access road is located. The applicant may provide a response to the Department to the comments.

(3) The applicant shall include the following information in the well permit application on forms provided by the Department:

(i) An identification of the public resource .

(ii) A description of the functions and uses of the public resource.

(iii) A description of the measures proposed to be taken to avoid, minimize or otherwise mitigate impacts, if any.

(4) The information required under paragraph (3) shall be limited to the discrete area of the public resource that may be affected by the well, well site and access road.

25 Pa. Code § 78a.15(f) (emphasis added).

Section 78a.15(g), which guides the Department's consideration, provides:

(g) The Department will consider the following prior to conditioning a well permit based on impacts to public resources :

(1) Compliance with all applicable statutes and regulations.

(2) The proposed measures to avoid, minimize or otherwise mitigate the impacts to public resources.

(3) Other measures necessary to protect against a probable harmful impact to the functions and uses of the public resource.

(4) The comments and recommendations submitted by public resource agencies, if any, and the applicant's response, if any.

(5) The optimal development of the gas resources and the property rights of gas owners.

25 Pa. Code § 78a.15(g) (emphasis added).

The regulations define the following corresponding terms:

Common areas of a school's property – An area on a school's property accessible to the general public for recreational purposes. For the purposes of this definition, a school is a facility providing elementary, secondary or postsecondary educational services.

* * *

Other critical communities –

(i) Species of special concern identified on a [Pennsylvania Natural Diversity Inventory (PNDI)⁹ ] receipt, including plant or animal species:

(A) In a proposed status categorized as proposed endangered, proposed threatened, proposed rare or candidate.

(B) That are classified as rare or tentatively undetermined.

(ii) The term does not include threatened and endangered species.

* * *

Playground –

(i) An outdoor area provided to the general public for recreational purposes.

(ii) The term includes community-operated recreational facilities.

* * *

Public resource agency – An entity responsible for managing a public resource identified in § 78a.15(d) or (f)(1) (relating to application requirements) including the Department of Conservation and Natural Resources, the Fish and Boat Commission, the Game Commission, the United States Fish and Wildlife Service, the United States National Park Service, the United States Army Corps of Engineers, the United States Forest Service, counties, municipalities and playground owners .

25 Pa. Code § 78a.1 (emphasis added).

III. Issues

The Coalition contends that the new well permit application...