The Pennsylvania Supreme Court has for now rejected an appeal filed by the state Department of Environmental Protection (DEP) challenging the Commonwealth Court’s ruling on part of the agency’s comprehensive overhaul of rules for unconventional natural gas drillers.
The Marcellus Shale Coalition (MSC) filed a lawsuit against the regulatory package -- years in the making -- shortly after it took effect in 2016. The Commonwealth Court stayed parts of the package to decide on the lawsuit, which has prevented the DEP from enforcing the rules. In August, however, the lower court found that one of the seven counts being challenged by the industry related to rules governing hydraulic fracturing near playgrounds and similar properties is too restrictive, declaring them “void and unenforceable.”
DEP appealed, but the state’s high court quashed the appeal on Wednesday, refusing to hear it until the Commonwealth Court issues a final order on the other six counts. DEP spokesman Neil Shader said essentially, the high court told the agency “that we jumped the gun a little in appealing just part of the Commonwealth Court decision before the rest was done.”
Both parties acknowledged that once the Commonwealth Court issues its final order, the agency will have another chance to appeal, depending on the outcome.
The aspect of the rulemaking in question could restrict oil and gas development near playgrounds and other defined public resources as it would require operators to conduct a review of the impacts drilling would have on those kinds of properties.
Commonwealth Court Judge Michael Wojcik, writing for a five-judge panel in August, called the definition of playgrounds "so broad as to defy quantification and compliance...It obviously includes children's playgrounds, sports fields, and picnic sites. However, it also includes virtually any area open to the public for recreational purposes, including commercial enterprises, such as shopping centers, movie theaters, sports stadiums, amusement parks, and golf courses."
At the time, MSC President David Spigelmyer said the ruling would provide "valuable relief" for oil and natural gas producers.
The remaining six counts of MSC's lawsuit involve challenges to the state’s new rules governing area of review; onsite processing; impoundments; site restoration; remediation of spills; and waste reporting. Those aspects of the case are still pending before the Commonwealth Court.
MSC’s lawsuit seeks declaratory judgment that those sections of the regulatory package are unlawful, arguing that they would harm its members. Parts of the regulations have since been implemented and the industry is complying with them, but MSC is challenging what DEP has identified as being the core provisions of the new rules.