185 A.3d 985
Pa.2018Background
- Marcellus Shale Coalition (MSC) sued DEP and the Environmental Quality Board (EQB) seeking declaratory and injunctive relief challenging multiple Chapter 78a regulations governing unconventional gas wells promulgated Oct. 8, 2016 under Act 13.
- MSC sought a preliminary injunction; Commonwealth Court (single-judge) granted narrow preliminary relief as to parts of Counts I (public resources), II (area-of-review monitoring/remediation), IV (impoundments), and V (site restoration), and denied other relief.
- Key contested regulatory provisions included definitions and notice/mitigation duties for “public resources” (25 Pa. Code §§78a.1, 78a.15(f),(g)), area-of-review monitoring/remediation rules (§§78a.52a, 78a.73), impoundment standards (§§78a.59b, 78a.59c), and a site-restoration provision (§78a.65(d)).
- Commonwealth Court found MSC raised substantial legal questions (and irreparable harm) as to inclusion of school common areas/playgrounds and ‘species of special concern’ as public resources; monitoring/remediation duties with respect to wells on others’ land; centralized impoundment reclassification under SWMA; and potential conflict between §78a.65(d) and Chapter 102/Clean Streams Law.
- Agencies appealed the partial preliminary injunction to the Pennsylvania Supreme Court; merits litigation in Commonwealth Court continued.
- Supreme Court: reviewed preliminary-injunction standard, examined each challenged regulatory area, and issued a mixed affirmance/reversal of the Commonwealth Court’s preliminary injunction order.
Issues
| Issue | Plaintiff's Argument (MSC) | Defendant's Argument (DEP/EQB) | Held |
|---|---|---|---|
| Whether playgrounds and school common areas and their owners can be regulated as “public resources” under §3215(c) and Chapter 78a | Inclusion exceeds statutory scope; public-resources protection in Act 13 does not authorize subdivision to private non-natural recreational lands or private owners as "public resource agencies" | §3215(c) list is open-ended; playgrounds/common areas are similar in kind to enumerated resources and fit within "other critical communities" | Affirmed injunction as to inclusion of school common areas/playgrounds and playground owners — substantial legal question and irreparable compliance cost shown |
| Whether "species of special concern" (via PNDI receipts) can be treated as protected "other critical communities" for mandatory permitting obligations | Designation lacks formal rulemaking and statutory protection; making PNDI-derived ‘‘species of special concern’’ mandatory is novel and unauthorized | Use of PNDI has long practice; "other critical communities" is broad and encompasses such species | Affirmed injunction as to species of special concern — substantial legal question exists about statutory authorization |
| Whether area-of-review rules requiring identification, monitoring, and remediation of nearby wells— including duties with respect to wells on others’ property—are lawful and enforceable | Regulations unworkable and exceed authority where they appear to require trespass/access to others’ land and possibly impose plugging duties on non-owners contrary to Act 13 | Regulations implement Act 13 and Clean Streams Law to prevent pollution; DEP has authority (and the Clean Streams Law can support entry/remedies where pollution/danger exists) | Affirmed injunction in part: monitoring/remediation obligations preliminarily enjoined only insofar as they impose duties with respect to wells owned/operated by others (substantial legal questions on access/authority and balancing of harms) |
| Whether impoundment rules may be applied retroactively to existing well-development and centralized impoundments (synthetic liners, fencing, SWMA reclassification) | Retroactive application to existing impoundments upends reliance and causes irrecoverable costs; reclassification under SWMA is a new interpretation needing scrutiny | Agencies have rulemaking authority; DSEA and SWMA support regulation of impoundments; reinterpretation based on leakage/experience is permissible | Mixed: reversed injunction as to §78a.59b(b) (well-development impoundments registration/upgrade) — MSC did not show clear right to relief; affirmed injunction as to §78a.59c (centralized impoundments) because reclassification under SWMA raised substantial legal questions and retrofitting/closure costs justified interim relief |
| Whether §78a.65(d) (site restoration/PCSM interplay) conflicts with Clean Streams Law / Chapter 102 §102.8(n) exemptions | §78a.65(d) may abrogate exemptions in Chapter 102 and impose erosion/sediment controls beyond Act 13/Clean Streams Law requirements | §78a.65(d) clarifies interplay between Chapter 78a and Chapter 102; if any conflict exists the more specific later-adopted provision controls | Reversed injunction as to §78a.65(d) — no clear right; on the record §78a.65(d) did not demonstrably conflict with legislative enactment and, if regulatory conflict existed, the specific later rule would control |
Key Cases Cited
- Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013) (limited portions of Act 13 previously enjoined; framework for agency authority under Act 13)
- SEIU Healthcare Pa. v. Commonwealth, 104 A.3d 495 (Pa. 2014) (standards for preliminary injunction; clear-right/substantial-question formulation)
- Pennsylvania Independent Oil & Gas Ass’n v. DEP, 146 A.3d 820 (Pa. Cmwlth. 2016) (interpretation of DEP authority after Robinson Township decisions)
- Young J. Lee, Inc. v. Dep’t of Revenue, 474 A.2d 266 (Pa. 1983) (due process principles distinguishing adjudicative revocation vs legislative rulemaking)
- Commonwealth v. Harmar Coal Co., 306 A.2d 308 (Pa. 1973) (imposition of environmental obligations where causation of pollution arises)