The Marcellus Shale Coalition v. DEP of PA and Environmental Quality Board of PA
193 A.3d 447
| Pa. Commw. Ct. | 2018Background
- In October 2016 the Environmental Quality Board promulgated Chapter 78a regulations governing surface activities for unconventional oil and gas wells; the Marcellus Shale Coalition (Coalition) filed a petition challenging portions immediately thereafter.
- The Coalition sought declaratory and injunctive relief against Section 78a.15(f)–(g) (the “Public Resource Regulations”) and related definitions in §78a.1 (including “other critical communities,” “common areas of a school’s property,” “playground,” and “public resource agency”).
- This Court previously entered a preliminary injunction in part; the Pennsylvania Supreme Court affirmed in part and clarified limits from Robinson Township v. Commonwealth.
- The Coalition moved for partial summary relief on Count I arguing the regulations exceed Act 13 authority, are vague, violate rulemaking requirements, and improperly delegate or expand who may influence permitting.
- The Commonwealth Court granted the Coalition’s motion in part: it invalidated the regulatory definitions of “other critical communities,” “common areas of a school’s property,” and “playground”; struck the inclusion of “playground owners” from the definition of “public resource agency”; and held the regulation requiring the Department will consider municipal comments (§78a.15(g)) unenforceable to the extent it relied on statutory authority enjoined by Robinson II. The Court denied relief in all other respects.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Pre-permit information/notice process (§78a.15(f)–(g)) — statutory authority & vagueness | Coalition: regs create a new pre-permit process without statutory authority, lack required criteria under §3215(e), and are vague/unreasonable | Agencies: Act 13 (§3215(c)/(e)) requires the Department consider public-resource impacts; regs merely seek information and echo statutory factors; properly promulgated | Denied as to the pre-permit notice/process generally — Court found the Department may require information and solicit agency comment; §78a.15(f)–(g) otherwise valid and not unconstitutionally vague as a whole |
| Definition of “other critical communities” (incl. PNDI “species of special concern”) | Coalition: regulation expands statute to include PNDI special-concern species (not authorized by Act 13), bypasses Documents Law and creates changing obligations | Agencies: General Assembly intended broader protection; ejusdem generis allows inclusion; agency practice supports definition | Granted — regulation defining “other critical communities” to include PNDI “species of special concern” is void and unenforceable (exceeds Act 13 and bypasses rulemaking) |
| Inclusion of “common areas of a school’s property” and “playground” as public resources | Coalition: terms are overbroad and include purely private sites; definitions are vague, unpredictable and not of same class as statutory public resources | Agencies: such areas can implicate public interest, are identifiable or discoverable, and are analogous to parks; inclusion is reasonable | Granted — Court held those definitions vague/overbroad and not of the same class as statutory public resources; therefore void and unenforceable |
| Definition of “public resource agency” and §78a.15(g)(4) (consideration of public resource agencies’ comments; inclusion of municipalities and playground owners) | Coalition: Robinson II enjoined statutory authority for municipal influence; including playground owners improperly elevates private parties to agency status and is unworkable | Agencies: regs fix Robinson II problem by obligating the Department to consider comments; municipalities appropriately included; definition is a term-of-art for permitting | Mixed: Court held inclusion of municipalities for consideration unenforceable to the extent based on statutory provision enjoined in Robinson II; inclusion of municipalities otherwise permissible; inclusion of “playground owners” in definition is void and unenforceable |
Key Cases Cited
- Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013) (plurality) (invalidated portions of Act 13 and enjoined application of certain §3215 provisions as tied to unconstitutional scheme)
- Pennsylvania Independent Oil & Gas Association v. Department of Environmental Protection, 146 A.3d 820 (Pa. Cmwlth. 2016) (clarifying Robinson II’s scope regarding §3215(c)/(e))
- Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017) (discussing Article I, §27 public trust duties that inform interpretation of public resources)
- Tire Jockey Service, Inc. v. Department of Environmental Protection, 915 A.2d 1165 (Pa. 2007) (standards for validity of agency regulations: within power, proper procedure, reasonable)
- Commonwealth v. Gilmour Mfg. Co., 822 A.2d 676 (Pa. 2003) (agency interpretative rules must genuinely track statute; courts may disregard unreasonable agency interpretations)