Pennsylvania Supreme Court: Regulators May Consider Impact of Unconventional Gas Drilling on Certain Non-Endangered Species, School Properties, and Playgrounds

On April 19, 2023, the Pennsylvania Supreme Court determined that certain regulations were lawful as promulgated by the Pennsylvania Department of Environmental Protection (DEP) and the Pennsylvania Environmental Quality Board (EQB) related to fact-finding in support of DEP’s review and issuance of unconventional well drilling permits (Marcellus Shale Coalition v. Dep’t of Envtl. Prot. Of Pa., 69 MAP 2021). The ruling overturns a 2018 decision by the Pennsylvania Commonwealth Court, which determined that the regulations exceeded their legal authority under Act 13 of 2012, which amended the Pennsylvania Oil and Gas Act.

The regulations at issue, created by the DEP and the EQB in 2016, set forth application requirements for well drilling proposals, which included a requirement that applicants notify applicable “public resource agencies” if the proposed well location “may impact a public resource.” The regulations proceeded to define a public resource as, in part, being located in a location that will impact “other critical communities,” which is defined as being “species of special concern” that are identified on a Pennsylvania Natural Diversity Inventory (PNDI) as those proposed endangered, threatened, rare or candidate, or species classified as rare or tentatively undetermined. The regulations also defined a public resource as being a location within 200 feet of “common areas on a school’s property or playground.” The regulations define a “public resource agency,” in part, as municipalities and playground owners. The regulations require that the DEP consider, in part, measures necessary to protect against harmful impact to the functions and uses of a public resource, and comments and recommendations submitted by public resource agencies prior to approving a well permit.

In a split decision, the Court concluded that the DEP possessed the statutory authority to define “public resources” to include other critical communities, playgrounds, and common areas on a school’s property, as the concept of a “public resource” stems from the Pennsylvania Environmental Rights Amendment (the “ERA,” Art. I, Sec. 27). Further, the Court determined that “other critical communities” – rather than only endangered species – were “public resources,” stating that “a species that is presently in a proposed state of risk could be thrust into higher jeopardy by nearby unconventional well development. [The Court does] not agree with the Commonwealth Court’s notion that the [DEP was] required to wait until a species reaches an even higher threat threshold as a prerequisite to protection where the interest of future generations of citizens must be considered.” The Court also agreed that common areas of school property and playgrounds were public resources, as “[u]nadulterated outdoor recreation space is a basic component of quality of life and encompassed in the broadly defined values of the environment protected by the ERA.”

Finally, the Court determined that the regulatory definitions, as well as the inclusion of playground owners as a “public resource agency” were reasonable, as the regulations further the DEP’s ability to gather additional information about permits it should issue, and that “the regulations are not designed to interfere with the development of unconventional gas well sites.”  The Opinion highlights the apparent broad scope of rulemaking authority granted to the DEP and EQB to implement Act 13.

Concurring and dissenting opinions from several justices were also published by the Supreme Court, which provide additional insight to the considerations of the Court in issuing its majority Opinion. A full copy of the Opinion can be found here. (https://www.pacourts.us/assets/opinions/Supreme/out/J-55-2022mo.pdf). If you would like additional information about environmental issues affecting the energy industry in Pennsylvania, please contact Chris Hagen-Frederiksen at 412-275-4998 or cfrederiksen@atenciohall.com.

#energylaw

#oilandgas

#environmentallaw