Commonwealth Court Judge James Gardner Colins Friday denied a request by groups representing conventional oil and gas drillers to invalidate DEP’s final Chapter 78 (conventional) and 78a (unconventional, Marcellus Shale) drilling regulations updates because they violated the provisions of a 2014 amendment to the Fiscal Code.

This action now clears the way for the regulatory review process to continue and for the Independent Regulatory Review Commission to consider the regulations on April 21.

In his written opinion, Judge Colins said on the issue of violating the Fiscal Code, “All three Respondents [DEP, Environmental Quality Board and the IRRC] argue that regardless of whether PIPP’s [PA Independent Petroleum Producers Association] assertions are accurate or legally meritorious, no relief can be granted to PIPP in this action because its claims are not ripe.  The Court agrees.”

“To obtain relief in this Court, PIPP must show that it is aggrieved and that there is an actual controversy between the parties that is not contingent on future events that may never occur.

“Here, the harm to PIPP depends on future events that may or may not occur.  The Final Form Regulations that PIPP seeks to set aside or prevent from being approved are not fully promulgated regulations.

“Thus, until the regulatory review process is complete, it is uncertain whether the Final Form Regulations will become final regulations in their current form and whether they will be promulgated as final regulations at all.

“... PIPP’s claims in this action are not ripe and cannot support summary relief or injunctive relief.”

In response to the argument by conventional drillers the industry will suffer instant harm because the final regulations would go into effect immediately, the Court said, “... there is no showing that PIPP’s members would incur serious harm instantaneously before it could seek relief from final regulations.  PIPP has not set forth what costs of compliance its members would incur in the first days and weeks under the Final Form Regulations; rather, its arguments of hardship and costs to conventional well operators refer only to the annual [Court’s emphasis] costs of compliance without discussion of when or how quickly those costs would be incurred.”

A copy of the Court’s opinion is available online.

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4/18/2016