A five-judge panel in Pennsylvania unanimously agreed with the Marcellus Shale Coalition’s (MSC) contention that state rules governing hydraulic fracturing (fracking) near playgrounds and similar properties are too restrictive, declaring them “void and unenforceable.”
In Commonwealth Court on Thursday, the panel tackled the first of seven counts in a lawsuit MSC filed in October 2016, shortly after rules went into effect that were promulgated by the Pennsylvania Environmental Quality Board (EQB) and set for enforcement by the Department of Environmental Protection (DEP).
Specifically, the MSC challenged the validity of parts of EQB’s Chapter 78a regulations pertaining to public resources and the definitions for “other critical communities,” “common areas of a school’s property,” “playground” and “public resource agency.”
Commonwealth Court Judge Michael Wojcik, writing for the panel, 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.
“Even a playground adjoining a McDonald’s eatery would qualify as a ‘public resource’ under the regulation. The sheer diversity of these resources renders the regulation unreasonable.”
However, the panel rejected MSC’s argument that the number of such public resources is “unknown or unknowable,” and that a list of them was not necessary.
“A permit applicant need only look 200 feet from its proposed limit of disturbance to see whether a neighboring feature may fit the definition of a playground or common area of a school that is open to the public,” according to a DEP argument that was reflected in the ruling.* “Any argument that doing this is burdensome is simply ludicrous.”
MSC President David Spigelmyer said the ruling would provide “valuable relief” for oil and natural gas producers.
“We appreciate the court’s careful consideration of the issues before it and its recognition of the regulatory overreach in these Chapter 78a provisions,” Spigelmyer said. “We look forward to the court addressing the remaining challenged provisions to provide the regulatory certainty and clarity needed to enable job creation and economic growth.”
So far, MSC has enjoyed partial success in its legal challenge on the first count of its lawsuit. After an evidentiary hearing in November 2016, the Commonwealth Court enjoined the coalition’s application for expedited special relief of the public resources regulations but only for the parts pertaining to “common areas of a school’s property or a playground” and “species of special concern” as “public resources,” and to include “playground owners” in the definition of a “public resource agency.”
DEP and EQB subsequently appealed to the Pennsylvania Supreme Court, which affirmed parts of MSC’s application but reversed others. However, the high court affirmed the preliminary injunction “on the basis that the coalition raised a substantial legal issue in relation to the public resource regulations and satisfied the other prongs for injunctive relief,” according to court records.
The remaining six counts of MSC’s lawsuit involve challenges to EQB rules governing area of review; onsite processing; impoundments; site restoration; remediation of spills; and waste reporting. Arguments are scheduled for Oct. 15.
The Commonwealth Court panel also included President Judge Mary Hannah Leavitt and Judges RenÃ©e Cohn Jubelirer, Robert Simpson and Patricia McCullough.
The case is Marcellus Shale Coalition v. Department of Environmental Protection of the Commonwealth of Pennsylvania and Environmental Quality Board of the Commonwealth of Pennsylvania, No. 573 MD 2016.
*Clarification: In the original article, NGI stated that Commonwealth Court Judge Michael Wojcik wrote that “a permit applicant need only look 200 feet from its proposed limit of disturbance to see whether a neighboring feature may fit the definition of a playground or common area of a school that is open to the public…any argument that doing this is burdensome is simply ludicrous.” However, the statement reflected an argument by the Pennsylvania Department of Environmental Protection and was not Wojcik’s opinion.
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