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PA Court Denies Trade Group's Challenge to DEP Permitting Requirements

The Pennsylvania Independent Oil and Gas Association (PIOGA) has lost a lawsuit in which it alleged the state Department of Environmental Protection (DEP) is overstepping its authority by enforcing permit requirements for oil and gas wells that it contends were invalidated in 2013.

The state Commonwealth Court denied the organization's motion for judgement to declare that DEP has no authority to require operators to identify parks, forests, scenic rivers, national landmarks and other public resources in their well permit applications. PIOGA has been battling the agency in court since last year (see Shale Daily, Jan. 7; June 22, 2015). It claimed that DEP can no longer require operators to identify impacts to public resources and wildlife after the state Supreme Court threw out the requirements when it deemed parts of Act 13 -- the state's omnibus oil and gas law -- unconstitutional in a broader case known as the Robinson Township decision (see Shale Daily, Dec. 20, 2013).

Despite that decision, a majority of a seven-judge panel ruled, the state has long regulated the location of oil and gas wells as part of its permitting process. Under section 3215 of Act 13, DEP has continued to ask operators whether a proposed well would impact public resources. If so, an operator has to identify those resources in a special form and send clearance letters from applicable state agencies.

"Section 3215(c), like its precursor, section 205(c) of the Oil and Gas Act of 1984, provides DEP with the authority to consider the impact a well location may have on public resources, such as publicly-owned parks, forests, and game lands; scenic rivers; and historical and archaeological sites within the commonwealth," the court said in its opinion.

A key part of the Robinson Township ruling was the high court's decision to strike down part of section 3215, which allowed DEP to grant a waiver on setbacks for drilling near water bodies, so long as an operator submitted a plan that showed those bodies of water would not be severely impacted (see Daily GPI, Dec. 27, 2013). PIOGA had argued that the provision was so closely intertwined with other setback and environmental regulations in the section that it should be considered invalid in its entirety.

But the Commonwealth Court ruled that the Supreme Court's opinion with respect to other parts of section 3215 was less definitive. In a narrow interpretation of the ruling, the lower court said language in the decision to invalidate the waiver setback did not apply to the rest of the section.

Any concerns about how DEP exercises its authority under the remaining parts of section 3215 that the Commonwealth Court upheld, the judges said, are better left to the administrative process with the state's Environmental Hearing Board.

PIOGA said it was dissapointed with the opinion and added that it is considering its options, which could include an appeal. DEP said in a statement that the ruling "unconditionally confirms" its authority under Act 13 to consider a well's impacts on public resources and wildlife.

The case has been watched closely as an overhaul of environmental regulations for shale drillers in the state is set to take effect soon (see Shale Daily, Aug. 15). Parts of that package would expand public resource protections and require operators to be mindful of schools and playgrounds in their permit applications.

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