Marcellus Shale Coal. v. Dep't of Envtl. Prot. of Pa., 573 M.D. 2016

• Decision Date: 22 July 2019
• Docket Number: No. 573 M.D. 2016,573 M.D. 2016
• Citation: 216 A.3d 448
• Parties: 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
• Court: Pennsylvania Commonwealth Court

216 A.3d 448

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 October 17, 2018

Decided July 22, 2019

Jean M. Mosites, Pittsburgh, for Petitioner.

Elizabeth A. Davis, Assistant Counsel, Nels J. Taber, Sr. Litigation Counsel, and Joseph M. Iole, Assistant Counsel, Harrisburg, for Respondent Department of Environmental Protection.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE CHRISTINE FIZZANO CANNON, Judge, HONORABLE ELLEN CEISLER, Judge

OPINION BY JUDGE BROBSON

TABLE OF CONTENTS

I. INTRODUCTION...456

II. PROCEDURAL HISTORY...457

III. GOVERNING LEGAL STANDARDS...458

A. Summary Relief...458

B. Declaratory Relief...458

C. Tire Jockey ...459

IV. ANALYSIS OF CROSS-APPLICATIONS...460

A. Area of Review (Count II)—Agencies' Application...460

B. On-Site Processing (Count III)—Cross-Applications...467

C. Well Development and Centralized Impoundments (Count IV)—Agencies' Application...470

1. Well Development Impoundments...470

2. Centralized Impoundments...474

D. Site Restoration (Count V)—Cross-Applications...479

1. Authority—Subsections (a) and (b)...482

2. Vagueness—Subsection (b)...486

3. Authority—Subsection (d)...489

4. Compliance with Procedures...492

5. Reasonableness...496

E. Spill Remediation (Count VI)—Cross-Applications...496

F. Waste Reporting (Count VII)—Agencies' Application...498

V. CONCLUSION...501

I. INTRODUCTION

The Marcellus Shale Coalition (Coalition) initiated this original jurisdiction action, seeking pre-enforcement review of regulations related to unconventional well operations found in Title 25, Chapter 78a of the Pennsylvania Code (Unconventional Well Regulations), 25 Pa. Code Ch. 78a.¹ Presently before the Court are cross-applications for partial summary relief. The Coalition seeks summary relief in its favor on Counts III (on-site processing regulation), V (site restoration regulation), and VI (spill remediation regulation) of its Petition for Review in the Nature of a Complaint Seeking Declaratory and Injunctive Relief (Petition). Respondents the Department of Environmental Protection (Department) and the Environmental Quality Board (EQB) (collectively, Agencies)² seek summary relief in their favor on Counts II (area of review regulation), III, IV (well development impoundment and centralized impoundment regulations), V, VI, and VII (waste reporting regulation).

II. PROCEDURAL HISTORY

Shortly after the Unconventional Well Regulations became effective, the Coalition initiated this action in our original jurisdiction. The Petition is organized into seven counts, each of which addresses challenges to a particular regulation. Contemporaneous with the Petition, the Coalition applied for preliminary injunctive relief, seeking an order enjoining enforcement of the challenged regulations pending disposition of the merits. Following an evidentiary hearing, this Court granted in part and denied in part the Coalition's application in an unreported, single-judge decision. See Marcellus Shale Coal. v. Dep't of Envtl. Prot. (Pa. Cmwlth., No. 573 M.D. 2016, filed Nov. 8, 2016) (MSC I ). Specifically, the Court granted some form of interim relief with respect to Counts I, II, IV, and V but denied interim relief with respect to the remaining counts of the Petition.

The Agencies appealed that decision to the Pennsylvania Supreme Court. The Supreme Court affirmed in part and reversed in part. See Marcellus Shale Coal. v. Dep't of Envtl. Prot. , 185 A.3d 985 (Pa. 2018) (MSC II ). Specifically, the Supreme Court affirmed the grant of preliminary injunctive relief with respect to Counts I and II. With respect to Count IV, the Supreme Court affirmed the grant of preliminary injunctive relief with respect to the regulation relating to centralized impoundments, but it reversed the grant of preliminary injunctive relief with respect to the regulation relating to well development impoundments.³ With respect to Count V of the Petition, the Supreme Court reversed the grant of preliminary injunctive relief.

We directed the parties to file dispositive motions by March 14, 2018. On August 31, 2017, the Coalition filed an application for summary relief directed to Count I of the Petition. Count I challenged Sections 78a.15(f) and (g) and certain definitions found in Section 78a.1 of the Unconventional Well Regulations, referred to generally as the public resource regulations. In a reported en banc Opinion and Order, this Court granted in part and denied in part the Coalition's application for summary relief with respect to Count I. Marcellus Shale Coal. v. Dep't of Envtl. Prot. , 193 A.3d 447 (Pa. Cmwlth.) (en banc) (MSC III ), appeal quashed , 198 A.3d 330 (Pa. 2018). In so doing, we declared void and unenforceable certain definitions found in Section 78a.1. We also declared unconstitutional and unenforceable Section 78a.15(g)'s requirement that the Department, as part of its review of a well permit application, consider comments and recommendations submitted by municipalities. We were constrained to do so because the Pennsylvania Supreme Court in Robinson Township v. Commonwealth , 623 Pa. 564, 83 A.3d 901 (2013) (Robinson Twp. II ), declared unconstitutional and unenforceable the statutory authorization for that provision—Section 3215(d) of Act 13 of 2012 (Act 13), 58 Pa. C.S. § 3215(d).⁴ Robinson Twp. II , 83 A.3d at 984-85, 1000. We denied the Coalition's application for summary relief as to Count I in all other respects. MSC III , 193 A.3d at 486.

On March 14, 2018, the parties filed the cross-applications for summary relief that are presently before the Court. The parties have each filed responses and briefs in support of their respective positions. The Sierra Club, Damascus Citizens for Sustainability, and Earthworks, as friends of the Court, filed a brief in opposition to the Coalition's application for summary relief. The Court, sitting en banc, heard oral argument on the cross-applications on October 17, 2018. The cross-applications are now ripe for disposition.

III. GOVERNING LEGAL STANDARDS

A. Summary Relief

Applications for summary relief addressed to this Court's original or appellate jurisdiction are authorized under Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure, which provides: "At any time after the filing of a petition for review in an appellate or original jurisdiction matter the court may on application enter judgment if the right of the applicant thereto is clear ." (Emphasis added.) Summary relief is similar to summary judgment under the Pennsylvania Rules of Civil Procedure, in that the requested relief is only appropriate where there are no disputed issues of material fact and it is clear that the applicant is entitled to the requested relief under the law. See Scarnati v. Wolf , 643 Pa. 474, 173 A.3d 1110, 1118 (2017). Moreover, we review the record in the light most favorable to the nonmoving party, resolving all doubts as to the existence of disputed material facts against the moving party. Id.

B. Declaratory Relief

The Coalition seeks relief under the Declaratory Judgments Act.⁵ A declaratory judgment is only appropriate to resolve a real controversy. Gulnac by Gulnac v. S. Butler Sch. Dist. , 526 Pa. 483, 587 A.2d 699, 701 (1991). As the Pennsylvania Supreme Court explained in Gulnac : "A declaratory judgment must not be employed to determine rights in anticipation of events which may never occur or for consideration of moot cases or as a medium for the rendition of an advisory opinion which may prove to be purely academic." Id. The decision to grant or deny declaratory relief lies "within the sound discretion of [the] court of original jurisdiction." Id.

We note as well that this matter is a pre-enforcement challenge to the Unconventional Well Regulations. Generally, courts should not prematurely entangle themselves in abstract disagreements over the meaning of an agency regulation. Instead, such disagreements are better resolved first through the agency adjudicatory process as a matter of enforcement. See Bayada Nurses, Inc. v. Dep't of Labor & Indus. , 607 Pa. 527, 8 A.3d 866, 875 (2010) (citing Arsenal Coal , 477 A.2d at 1333 ); see also Tire Jockey Serv., Inc. v. Dep't of Envtl. Res. , 591 Pa. 73, 915 A.2d 1165, 1187 (2007) (ruling on challenge to regulation in context of appeal from enforcement action before Environmental Hearing Board). Where, however, the impact of a regulation on an industry is direct and immediate, pre-enforcement judicial review is appropriate. Bayada Nurses , 8 A.3d at 875-76 ; see also EQT Prod. Co. v. Dep't of Envtl. Prot. , 634 Pa. 611, 130 A.3d 752, 759 (2015) (EQT I ) (holding pre-enforcement review of dispute over statutes establishing penalty exposure under The Clean Streams Law⁶ was appropriate because Department's threat of multi-million dollar liability was direct, immediate, and substantial).

C. Tire Jockey

"[W]hen an agency adopts a regulation pursuant to its legislative [rulemaking] power, ... it is valid and binding upon courts as a statute so long as it is (a) adopted within the agency's granted power, (b) issued pursuant to proper procedure, and (c) reasonable." Tire Jockey , 915 A.2d at 1186. The challenged regulations in this matter are legislative rules and thus may be challenged on any or all of these three grounds.⁷ MSC II , 185 A.3d at 995.

To determine whether a regulation is adopted within an agency's granted power, we look for statutory language authorizing the agency to promulgate the legislative rule and examine that language to determine whether the rule falls within the grant of authority. See Slippery Rock Area Sch. Dist. v. Unemployment Comp. Bd. of Review , 603 Pa. 374, 983 A.2d...