PA Supreme Court Upholds DEP Authority To Regulate Impact Of Conventional Oil & Gas Wells On Public Resources

The PA Supreme Court Tuesday issued a decision upholding a 2016 Commonwealth Court decision that found DEP can regulate conventional oil and gas operations under Section 3215(c) of Act 13 which requires DEP to take into account the impact of a well on public resources, including local, state and national parks, natural landmarks, habitats of rare and endangered species, historical and archaeological sites and sources of drinking water supply.

Conventional drillers argued the 2013 decision by the PA Supreme Court in Robinson invalidated Section 3215, but Commonwealth Court found otherwise.

“...DEP’s authority under Section 3215(c) to consider the impact that a proposed well will have on public resources, those listed and unlisted, is extant, limited only by the portion of the Supreme Court’s mandate in Robinson Twp. I that enjoins its application and enforcement with respect to the water source setback and waiver provisions set forth in Section 3215(b).

“In practice, this means that when DEP considers the impact of a proposed well on a source or sources used for public drinking supplies, it is not constrained to do so “in accordance with” enjoined Section 3215(b).

“In Act 13, the General Assembly unambiguously expressed its intent that the EQB promulgate regulatory criteria that DEP must use “for conditioning a well permit based on its impact to the public resources identified under [Section 3215(c)] and for ensuring optimal development of oil and gas resources and respecting property rights of oil and gas owners. Section 3215(e) of Act 13.

“Any concerns over how DEP exercises its authority under  Section 3215(c) of Act 13 with respect to well permit applications, including, but not limited to, whether DEP follows the regulatory criteria established by the EQB, are better left to the administrative agency process, followed by review in our appellate jurisdiction.”

A copy of the PA Supreme Court ruling is available online.  Click Here for the 2016 Commonwealth Court decision.
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