Marcellus Shale Coal. v. Dep't of Envtl. Prot. of Pa., 573 M.D. 2016
Decision Date | 23 August 2018 |
Docket Number | No. 573 M.D. 2016,573 M.D. 2016 |
Citation | 193 A.3d 447 |
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 |
Jean M. Mosites, Pittsburgh, for petitioner.
Michael A. Braymer, Assistant Counsel, Meadville, for respondents.
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge, HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge, HONORABLE PATRICIA A. McCULLOUGH, Judge, HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY JUDGE WOJCIK
Before this Court is the Marcellus Shale Coalition's (Coalition)1 Application for Partial Summary Relief (Application) seeking summary relief on Count I of its Petition for Review in the Nature of a Complaint Seeking Declaratory and Injunctive Relief (Petition). In Count I, the Coalition challenges recently promulgated regulations related to unconventional oil and gas well operations contained in Title 25, Chapter 78a of the Pennsylvania Administrative Code (Chapter 78a Regulations), namely, Section 78a.15(f) and (g) and certain definitions in Section 78a.1 pertaining to public resources,2 25 Pa. Code § 78a.15(f)-(g), 78a.1 (referred to generally as the Public Resource Regulations). For the reasons that follow, we grant the Application in part with respect to the challenged definitions, as well as Section 78a.15(g)'s mandate regarding consideration of comments and recommendations submitted by municipalities, which we declare as void and unenforceable, and deny the Application in all other respects.
The Environmental Quality Board (Board) published the Chapter 78a Regulations in the Pennsylvania Bulletin on October 8, 2016, which immediately went into effect. 46 Pa. B. 6431 (2016). The Chapter 78a Regulations relate to surface activities associated with the development of unconventional wells.
On October 13, 2016, the Coalition filed its Petition against the Board and the Department of Environmental Protection (Department) (collectively, the Agencies) seeking pre-enforcement review of the Chapter 78a Regulations. The Coalition asserts seven counts and requests declaratory relief pursuant to the Declaratory Judgments Act.3
In Count I, the Coalition challenges the validity of Section 78a.15(f) and (g) pertaining to public resources and the related definitions contained in Section 78a.1 of the Chapter 78a Regulations. The Coalition claims that Section 78a.15 injects an entirely new pre-permitting process without statutory authority. It challenges the attendant definitions of "other critical communities," "common areas of a school's property," "playground," and "public resource agency" in Section 78a.1.4
Contemporaneous with the Petition, the Coalition filed an application for expedited special relief to preliminarily enjoin the Department's enforcement of the Chapter 78a Regulations to prevent immediate, substantial and irreparable harm to the Coalition and its members. On November 8, 2016, following an evidentiary hearing,5 this Court granted in part and denied in part the Coalition's application, preliminarily enjoining portions of the Chapter 78a Regulations challenged. With regard to Count I, this Court enjoined application of the Public Resource Regulations "only to the extent that they include ‘common areas o[f] a school's property or a playground’ and ‘species of special concern’ as ‘public resources’ and include ‘playground owners’ in the definition of ‘public resource agency.’ " Preliminary Injunction Order, 11/8/16, at 1-2.
The Agencies appealed the Preliminary Injunction Order to the Pennsylvania Supreme Court. The Supreme Court affirmed in part and reversed in part. Marcellus Shale Coalition v. Department of Environmental Protection , ––– Pa. ––––, 185 A.3d 985 (2018). Of relevance here, the Supreme Court affirmed the grant of preliminary injunctive relief as to Count I on the basis that the Coalition raised a substantial legal issue in relation to the Public Resource Regulations and satisfied the other prongs for injunctive relief. Id. at 987-90.
Meanwhile, in this Court, the Agencies jointly responded to the Petition. We entered a Case Management Order requiring fact and expert testimony to conclude by January 31, 2018, and directing the filing of all dispositive motions by February 28, 2018.6 See Commonwealth Court Order, 7/12/17.
On August 31, 2017, the Coalition filed the present Application seeking summary relief on Count I of the Petition.7 The Agencies filed an answer in opposition. The parties then filed briefs in support of their respective positions. In addition, amici curiae8 filed briefs in support of the Agencies' position. On December 6, 2017, this Court sitting en banc heard argument on the Application.
We begin by setting forth the regulations at issue. Section 78a.15(f) of the Chapter 78a Regulations, which sets forth application requirements, provides:
25 Pa. Code § 78a.15(f) (emphasis added).
Section 78a.15(g), which guides the Department's consideration, provides:
25 Pa. Code § 78a.15(g) (emphasis added).
The regulations define the following corresponding terms:
25 Pa. Code § 78a.1 (emphasis added).
The Coalition contends that the new well permit application...
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