The Commonwealth Court Thursday struck down provisions in DEP’s Chapter 78a(f) and (g) unconventional drilling regulations defining “common areas of a school’s property and playgrounds,” and “species of special concern” as public resources under Act 13 of 2012 based on legal challenges by the Marcellus Shale Coalition.

The Court also struck down the provisions of the regulation that required DEP to consider comments on well permits submitted by municipalities, primarily due to an earlier PA Supreme Court decision in Robinson II.

The Court, however, did generally uphold DEP’s fundamental authority to consider impacts to and to protect other public resources from negative impacts of unconventional gas well development based on the Environmental Rights Amendment to the state constitution.

“The statutory concept of “public resources” embodied in Act 13 and the Public Resource Regulations derives from Article I, Section 27 of the Pennsylvania Constitution.... Section 27 establishes a common law trust, with the Commonwealth as trustee and the public natural resources managed by the Commonwealth as the corpus of the trust.

“The trustee is obligated to conserve, maintain and manage the corpus of the trust for the benefit of the trust’s beneficiaries – the people.

“As the plurality of the Pennsylvania Supreme Court opined in Robinson II, the constitutional concept of “public natural resources” includes: not only state-owned lands, waterways, and mineral reserves, but also resources that implicate the public interest, such as ambient air, surface and ground water, wild flora, and fauna (including fish) that are outside the scope of purely private property.

“In furtherance of its trustee duties, the General Assembly directed the Department to consider impacts of a proposed well on “public resources” when determining whether to grant a well permit or add permit conditions to avoid potentially negative impacts from fracking activities.”

Gathering Public Resource Information

The Court concluded DEP did have statutory authority to require drillers to gather information on the permit review process on the potential impact of a proposed unconventional gas well on public resources like parks, wildlife areas, history sites, schools, water wells private and public (25 Pa Code Chapter 78a.15(f)) saying--

“Without this information, the Department’s ability to consider the potential impacts to public resources would be severely hampered. Thus, we conclude that the Public Resource Regulations do not exceed statutory authority by authorizing the Department to seek information from well applicants and comments from public resource agencies as part of its impact consideration.”

Conditioning Permits

The Court also upheld the general authority of DEP to put conditions on unconventional well permits based on a well’s potential impact on public resources in order “...to avoid, minimize or otherwise mitigate impacts to public resources; other measures necessary to protect against a probable impact to the functions and uses of a public resource; comments and recommendations from public resource agencies; and the optimal development of gas resources and property rights.”

School Property & Playgrounds

The provision in Chapter 78a(f) authorizing DEP to consider the impact of a well permit on “common areas of a school’s property and playgrounds” was challenged by the Marcellus Shale Coalition as not being a “public  resource” to be protected under Act 13 and that the terms were not defined, were overly broad and unenforceable.

The Court agreed with Marcellus Shale Coalition--

“Although common areas of a school’s property and playgrounds may share some similarities with the public resources listed in Section 3215(c), we agree with the Coalition that they are not within the “same general class or nature as” their statutory counterparts.

“With regard to schools, virtually any school would fall within the definition of “school,” such as career and technical centers, culinary schools, charter schools, community colleges, private-licensed school, driver-training school, vocational schools, etc.

“The list is seemingly endless as any institution providing some form of educational services would ostensibly qualify as a “school” under the regulatory definition.

“As for the recreational aspect, a mere picnic table and bench or basketball hoop accessible to the public would bring the school’s property within the purview of the regulation.

“Although common areas of a school’s property and playgrounds may share some recreational similarities with the statutory public resources, they do not implicate “public interest” in the same way and they are not part of the trust corpus over which the Commonwealth is charged with protecting under the Constitution.

“For these reasons, we declare that the regulatory definition of public resources to the extent it includes “common areas of a school’s property” and “playground” is void and unenforceable.”     

Species Of Special Concern

The Marcellus Shale Coalition challenged the inclusion of “species of special concern” within the scope of the public resources to be protected saying it is not contained within or authorized by Act 13.

The Court held that while Act 13 gave DEP the authority to protect rare, endangered, threatened and critical species, the term “other critical communities” did not include “species of special concern” and “represents a less imminent or potential conservation threat.” (25 Pa Code 78a(f))

“By creating obligations tied to species of special concern, which are not at the same level of risk as threatened or endangered species, the regulation upsets the balance between industry and the environment strived for in Act 13.

“Absent statutory authority for “species of concern,” as identified on the PNDI [PA Natural Diversity Inventory], we conclude that the regulation exceeds the scope and purpose of Act 13 and is unenforceable.”

Municipal Comments

The definition of “public resource agencies” was challenged by the Marcellus Shale Coalition with respect to DEP considering the comments of “municipalities and playground owners” on well permits 25 Pa Code 78a(f) and (g)). DEP, they argued, did not have the authority to consider municipal comments as a result of the Robinson II PA Supreme Court decision.

The Court upheld the inclusion of municipalities within the  “public resource agencies” by virtue of the trustee obligations local governments have under the state’s Environmental Rights Amendment, but said the Robinson II decision “constrained to declare Section 78a.15(g)’s requirement that the Department will consider comments and recommendations submitted by municipalities is unconstitutional and unenforceable….”

The Court also ruled the definition of “playground owners” was overly broad and “may be unknown, unidentified or unlisted” and were therefore not a public resource agency to be considered under the regulations.

Valid Adoption Of The Regulation

With respect to the Marcellus Shale Coalition’s challenge to the adoption of regulation because of what the Coalition said was an inadequate Regulatory Analysis Form outlining the economic impacts, statement of need and estimated costs to comply with the regulation, the Court upheld the adoption of Chapter 78a, citing an earlier decision in Bedford v. Commonwealth, 972 A.2d 53, 62 (Pa. Cmwlth. 2009)--

“... Bedford does not stand for the proposition that a party may challenge the validity of a regulation based on the sufficiency of information submitted to the IRRC pursuant to the Review Act.

‘Indeed, Section 745.2(d) of the Review Act provides, “This act is not intended to create a right or benefit, substantive or procedural, enforceable at law by a person against another person or against the Commonwealth, its agencies or its officers.” Section 2(d) of the Review Act, 71 P.S. §745.2(d).

‘There is no evidence to suggest that the IRRC’s review of the Public Resource Regulations was in any way thwarted by the lack of a more specific cost estimate. Thus, we conclude there is no clear right to relief on this point.

“For these reasons, we decline to declare the permitting process devised under Section 78a.15(f) and (g) invalid and unenforceable.”

Summary

“In sum, we grant the Coalition’s Application in part and we deny it in part. We grant the Application to the extent that we declare the regulatory definitions of “other critical communities,” “common areas of a school’s property,” and “playground” contained in 25 Pa. Code §78a.1 as void and unenforceable.

“We declare the regulatory definition of “public resource agency,” contained in 25 Pa. Code §78a.1 and as used within 25 Pa. Code §78a.15(f), (g), void and unenforceable to the extent that it includes “playground owners.”

“We are also constrained to declare Section 78a.15(g)’s requirement that the Department will consider comments and recommendations submitted by municipalities is unconstitutional and unenforceable based on the Supreme Court’s decision in Robinson II, in which it declared Section 3215(d) of Act 13, 58 Pa. C.S. §3215(d) – the statutory authorization for this regulatory provision – unconstitutional and enjoined its application and enforcement.

“We deny the Application in all other respects.”

Click Here for a copy of the Commonwealth Court decision.

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[Posted: August 24, 2018]

8/27/2018