Posted by: Patricia Salkin | October 8, 2016

PA Appeals Court Denies Declaratory Relief Seeking to Prevent Department of Environmental Protection from Applying and Enforcing Section of the Pennsylvania Oil and Gas Act

Petitioner Pennsylvania Independent Oil & Gas Association (PIOGA) initiated this action for declaratory relief against Respondent Commonwealth of Pennsylvania, Department of Environmental Protection (DEP), asking the court to declare that DEP may not apply and enforce Section 3215(c) of the Pennsylvania Oil and Gas Act, also known as Act 13,1 58 Pa. C.S. § 215(c), as part of its well permit application process. Section 3215(b) of Act 13 imposed restrictions on the location of oil and gas wells. Section 3215(b)(1) through (3) of the Act provided for well site and related disturbed area setbacks from certain perennial streams, springs, other bodies of water, and wetlands. Section 3215(b)(4) provided that DEP must waive the setbacks under certain conditions. In Part V of Robinson Twp. I, a majority of the Supreme Court addressed the severability of other provisions in Section 3215, in light of their conclusion that Section 3215(b)(4) was unconstitutional. Among the provisions that the Supreme Court addressed was Section 3215(c), the provision at issue in this case. The Supreme Court concluded that the General Assembly did not intend that the setback provisions apply in the absence of the waiver provision, the Supreme Court concluded that the provisions of Section 3215(b) were not severable—i.e., were “incomplete and incapable of execution in accordance with the legislative intent.” Accordingly, the Supreme Court enjoined application and enforcement of Section 3215(b) in its entirety. 

On appeal, PIOGA contended that the Pennsylvania Supreme Court enjoined the application and enforcement of Section 3215(c) of Act 13 in Robinson Township v. Commonwealth, 623 Pa. 564, 83 A.3d 901 (2013) (Robinson Twp. I). PIOGA’s principal argument was that DEP currently applied Section 3215(c) of Act 13 by requiring well permit applicants to complete the Public Resources Form and comply with the PNDI Policy. PIOGA further contended that by doing so, the DEP was violating the Pennsylvania Supreme Court’s mandate in Robinson Twp. I. 

The court first discussed Section 3215(c), which it noted that like its precursor, Section 205(c) of the Oil and Gas Act of 1984, provided the DEP with the authority to consider the impact a well location may have on public resources, such as publicly-owned parks, forests, and game lands; scenic rivers; and historical and archaeological sites within the Commonwealth. The only provision of Section 3215(c) linking that subsection to Section 3215(b) was paragraph (6), which provides for DEP to consider the impact of the proposed well on “sources used for public drinking supplies in accordance with Section 3215(b).” This provision related to only one of the classes of enumerated public resources that the General Assembly sought to protect in Section 3215(c), with the five others bearing no relation to the water source setback and waiver provisions of Section 3215(b), which were therefore unaffected by the Supreme Court’s mandate in Robinson Twp. I. Accordingly, Section 3215(e), which provides the EQB with the duty to develop regulatory criteria, was enjoined only to the extent that the regulatory criteria would bear on the water source setback and waiver provisions of Section 3215(b). Therefore, the court found that when the DEP considers the impact of a proposed well on a source or sources used for public drinking supplies, it is not constrained to do so “in accordance with” enjoined Section 3215(b). 

As a final matther, the court found that any concerns over how DEP exercised its authority under Section 3215(c) of Act 13 with respect to well permit applications, including whether the DEP followed the regulatory criteria established by the Environmental Quality Board, were better left to the administrative agency process, followed by review in the appellate jurisdiction. 

Pennsylvania Indep. Oil & Gas Assn. v. Cmmw., 321 M.D. 2015, 2016 WL 4547217 (Pa. Cmmw. Sept. 1, 2016)


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