PA Supreme Court Upholds DEP’s Authority To Protect Public Resources, Playgrounds From Adverse Impacts Of Shale Gas Well Operations; Do Not Mistake This Win For Adequate Protection

On April 19, the PA Supreme Court issued a ruling overturning a Commonwealth Court decision that blocked the ability of the Department of Environmental Protection to protect public resources and playgrounds from the adverse impacts of unconventional shale gas well operations.

The Marcellus Shale Coalition challenged DEP’s 2016 regulations setting environmental and safety standards for unconventional shale gas drilling saying the Oil and Gas Act (Act 13) did not authorize DEP to further define public resource agencies and public resources and the regulations contained a potentially overly broad definition of playgrounds.

The regulations included Sections 78a.1 (definitions) and 78a.15 (setbacks) for--

-- Determining the impact of a well permit on public resources including parks, forests, game lands, scenic rivers, natural landmarks, habitats of rare and endangered species [including consultations with resources agencies species of special concern] and other critical communities, historical and archaeological sites and drinking water sources

-- Determining the impact on  school property or playgrounds.

In siding with DEP in this ruling, the Court said--

“The fact that the Agencies are required to consider their trustee duties [under the Environmental Rights Amendment] in making decisions on well permits supports the conclusion that the General Assembly, in listing specific items within Section 3215(c) that defy categorization as privately-owned or publicly-accessible, intended for the Agencies to provide additional protections geared towards protecting the quality of life of Pennsylvania citizens and otherwise effectuating the ERA’s [Environmental Rights Amendment] purpose.”

“For these reasons, we conclude that the plain text signals the intent to confer the Agencies with the legislative power to protect additional “public resources” at their discretion.

Because the term “public resource” is rooted in the ERA, we hold that the proper test is whether the items chosen by the Agencies fall within the ERA’s conception of a “public resource.” Here, all three do.”

With respect to playgrounds, the Court said, “Unadulterated 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 [Environmental Rights Amendment]. 

“An unconventional gas well near spaces used by the public for recreational purposes could threaten the ambient air quality and cause significant noise pollution.”

The Court also held changing a regulation between proposed and final does not violate the Commonwealth Documents Law in this circumstance.

“With this background in mind, we reject the Commonwealth Court’s holding that the inclusion of the PNDI [PA Natural Diversity Inventory] process in the regulatory definition of “other critical communities” amounts to a continuing, de facto amendment of the regulation, exposing it to endless public notice requirements.”

The Court concluded--

“The Commonwealth Court deemed invalid and unenforceable several regulations promulgated by the Agencies that serve primarily to aid the Agencies in information gathering attendant to the issuance of permits for unconventional gas well operations.

“For all of the reasons set forth above, we find that the Agencies did not exceed their legislative rulemaking powers in enacting the challenged regulations, and so, we reverse the Commonwealth Court’s order.”

Click Here for a copy of the Court ruling. 

[Note: Do not mistake this court win as saying DEP’s shale gas regulations adequately protect public health and the environment.

[In fact, most people agree the now seven-year-old Chapter 78a shale gas regulations need significant updating to provide much better protection based on the latest science and up-to-date practices.  

[In fact, Gov. Shapiro just provided fresh support for key recommendations for changing the regulations and law in a 2020 Grand Jury Report he issued as Attorney General on the Oil and Gas Program.  Read more here.

[In addition, DEP is in the process of updating Chapter 78 regulations covering conventional oil and gas operations that have not been updated since 1987.  An updated version of final conventional regulations were killed by the General Assembly and Gov. Wolf in 2016 when the final shale gas regulations were allowed to move ahead.]

Related Articles This Week:

-- Inside Climate News: Gov. Shapiro Provides Fresh Support To Key Changes Recommended In 2020 Grand Jury Report To Tighten Regulation Of The Natural Gas Drilling Industry To Better Protect Public Health, Environment   [PaEN]

-- New State Health Plan Identifies Health Issues Related To Natural Resource Extraction, Climate Change In Top 5 Threats To Health Outcomes; No Update On University Of Pittsburgh Oil & Gas Health Impacts Study  [PaEN]

-- Concerned Residents, Advocates Call On DEP For The Opportunity To Comment On Proposed Roulette Oil & Gas Waste Injection Well In Potter County  [PaEN]

-- DEP/Equitrans Settlement: DEP, Preempted By Federal Law, Withdraws Order, Closes NOVs Against Equitrans For Cambria County Natural Gas Storage Leak Releasing 1 Billion Cubic Feet Of Natural Gas  [PaEN] 

-- Bay Journal: Shale Gas Drilling, Development Yields Both Fears, Funding For Pennsylvania Public Lands - By Ad Crable, Chesapeake Bay Journal  [PaEN]

-- Intense, Bright White Light From The Shell Plastics Plant Turns Night Into Day For Many Neighbors Of The Beaver County Plant  [PaEN]

[Posted: April 19, 2023]  PA Environment Digest