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Pennsylvania Court Stays Parts of New Shale Regulations

The Pennsylvania Commonwealth Court has stayed parts of the state's regulatory overhaul for shale drillers to consider the merits of a lawsuit filed by the Marcellus Shale Coalition (MSC) that challenges key provisions of the package.

MSC filed its lawsuit last month, seeking declaratory judgment that sections of the regulatory package are unlawful (see Shale DailyOct. 14). It also filed an application for summary relief and expedited review, asking the court to stay the sections it's challenging until the legality of the provisions are decided.

MSC attorneys have argued that those sections violate state law and harm members. In an order granting preliminary injunctive relief on Tuesday, Judge P. Kevin Brobson enjoined the Pennsylvania Department of Environmental Protection (DEP) from implementing some of the regulations. He found that the enjoined provisions could cause irreparable harm to MSC's members and noted that regulators might not have the authority to implement them.

The DEP began drafting the regulations about five years ago, and they went into effect Oct. 8. Less than a week later the MSC filed its lawsuit. The new rules are designed to reduce impacts on public resources, such as schools and parks, help prevent spills, strengthen waste management and require stronger well site restoration.

MSC President David Spigelmyer said the industry group agreed with the court’s decision “to preliminarily stay unlawful, burdensome and costly portions of the challenged regulations from going into effect until this matter can be fully decided in the courts. Our industry supports fair, consistent and clear regulations that ensure environmental and public safety. All seven provisions that the MSC has challenged conflict with DEP's statutory authority granted by the General Assembly as well as [state] Supreme Court precedent and bring immediate harm to our industry."

The court stayed a section that would require more stringent well site restoration standards in its entirety and another that require existing impoundments to be closed or upgraded within 12 months. It also enjoined part of the public resources protection provision that would require operators to conduct a review of the impacts drilling would have on parks, forests, rivers, national landmarks, schools and drinking water protection areas. The court stayed those regulations for schools, playgrounds and species of special concern. The court also enjoined rules that would require operators to monitor and remediate damage to wells owned by other companies or those without an owner.

However, the court denied the MSC's challenge to monthly waste reporting, spill remediation and the onsite processing of drill cuttings.

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