Pennsylvania Independent Oil & Gas Ass'n v. Commonwealth, Department of Environmental Protection

146 A.3d 820, 2016 Pa. Commw. LEXIS 375, 2016 WL 4547217
CourtCommonwealth Court of Pennsylvania
DecidedSeptember 1, 2016
Docket321 M.D. 2015
StatusPublished
Cited by13 cases

This text of 146 A.3d 820 (Pennsylvania Independent Oil & Gas Ass'n v. Commonwealth, Department of Environmental Protection) is published on Counsel Stack Legal Research, covering Commonwealth Court of Pennsylvania primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pennsylvania Independent Oil & Gas Ass'n v. Commonwealth, Department of Environmental Protection, 146 A.3d 820, 2016 Pa. Commw. LEXIS 375, 2016 WL 4547217 (Pa. Ct. App. 2016).

Opinions

OPINION BY

JUDGE P. KEVIN BROBSON

Petitioner Pennsylvania Independent Oil & Gas Association (PIOGA) initiated this [821]*821action for declaratory relief in our original jurisdiction against Respondent Commonwealth of Pennsylvania, Department of Environmental Protection (DEP), asking this Court to declare that DEP may not apply and enforce Section 3215(c) of the Pennsylvania Oil and Gas Act, also known as Act 13,1 58 Pa. C.S. § 215(c), as part of its well permit application process. PIOGA contends that the Pennsylvania Supreme Court enjoined application and enforcement of Section 3215(e) of Act 13 in Robinson Township v. Commonwealth, 623 Pa. 564, 83 A.3d 901 (2013) (Robinson Twp. I).2 PIOGA has moved for judgment on the pleadings, and DEP has filed a cross-application for summary relief, seeking dismissal of PIOGA’s petition for review.3 The dispute before the Court is a legal one. For the reasons set forth below, we deny PIOGA’s motion and grant DEP’s cross-application.

I. BACKGROUND

A. Act 13 and Robinson Twp. I

In February 2012, Governor Tom Cor-bett signed Act 13 into law. Act 13 repealed the Oil and Gas Act of 1984.4 In place thereof, Act 13 amended Title 58 of the Pennsylvania Consolidated Statutes by re-codifying portions of the repealed Oil and Gas Act of 1984 and adding new provisions organized into three new parts and six new chapters relating to oil and gas development in the Commonwealth. Chapter 32 of Act 13 addresses well permitting and establishes statewide limitations on oil and gas development. As described by our Pennsylvania Supreme Court, “Act 13 comprise[d] sweeping legislation affecting Pennsylvania’s environment and, in particular, the exploitation and recovery of natural gas in a geological formation known as the Marcellus Shale.” Robinson Twp. I, 83 A.3d at 913.

In Robinson Twp. I, the Pennsylvania Supreme Court, on appeal from a decision by this Court, considered, inter alia, legal challenges to Chapter 32 of Act 13. A plurality concluded ' that Sections 3215(b)(4), 3215(d), 3303, and 3304 of Act 13 violated Article I, section 27 of the [822]*822Pennsylvania Constitution, known as the Environmental Rights Amendment.5 Id. at 985 (plurality).6 Justice Baer, writing separately, concurred with the plurality’s conclusion that these sections were unconstitutional, but on substantive due process grounds. Id. at 1008-09 (Baer, J., concurring). He also concurred in the plurality’s mandate, yielding a majority directive, that “application and enforcement of Sections 3215(b)(4), 3215(d), 3303, and 3304 [of Act 13] is hereby enjoined.” Id. at 1000 (plurality), 1009 (Baer, J., concurring).

Section 3215(b) of Act 13 imposed restrictions on the location of oil and gas wells. Section 3215(b)(1) through (3) provided for well site and related disturbed area setbacks from certain perennial streams,7 springs, other bodies of water, and wetlands. Section 3215(b)(4) provided that DEP must waive the setbacks under certain conditions:

The department shall waive the distance restrictions upon submission of a plan identifying additional measures, facilities or practices to be employed during well site construction, drilling and operations necessary to protect the waters of this Commonwealth. The waiver, if granted, shall include additional terms and conditions required by the department necessary to protect the waters of this Commonwealth. Notwithstanding section 3211(e), if a waiver request has been submitted, the department may extend its permit review period for up to 15 days upon notification to the applicant of the reasons for the extension.

58 Pa. C.S. § 3215(b)(4). As noted above, a majority of Supreme Court justices held that this provision, authorizing a waiver of setbacks, was unconstitutional and enjoined its application and enforcement.

In Part V of Robinson Twp. I, a majority of the Supreme Court8 addressed the severability of other provisions in Section 3215, in light of their conclusion that Section 3215(b)(4) was unconstitutional. Among the provisions that the Supreme Court addressed was Section 3215(c), the provision at issue in this matter. Section 3215(c) provides:

On making a determination on a well permit, the department shall consider the impact of the proposed well on public resources, including, but not limited to:
(1) Publicly owned parks, forests, game lands and wildlife areas.
(2) National or State scenic rivers.
(3) National natural landmarks.
(4) Habitats of rare and endangered flora and fauna and other critical communities.
[823]*823(5) Historical and archaeological sites listed on the Federal or State list of historic places.
(6) Sources used for public drinking supplies in accordance with subsection (b).

58 Pa. C.S. § 3215(c). The majority also considered the severability of Section 3215(e), which provides:

The Environmental Quality Board [“EQB”] shall develop by regulation criteria:
(1) For the department to utilize for conditioning a well permit based on its impact to the public resources identified under subsection (c) and for ensuring optimal development of oil and gas resources and respecting property rights of oil and gas owners.
(2) For appeal to the Environmental Hearing Board of a permit containing conditions imposed by the department. The regulations shall also provide that the department has the burden of proving that the conditions were necessary to protect against a probable harmful impact of the public resources.

58 Pa. C.S. § 3215(e) (emphasis added).

On severability, the Supreme Court first rejected the request of the challengers to declare the entirety of Act 13 unconstitutional in light of the Supreme Court’s decision that certain “core” parts of Act 13 were unconstitutional. Robinson Twp. I, 83 A.3d at 998-99. The Supreme Court, however, recognized that “there are obvious consequences of certain of our holdings.” Id. at 999 (emphasis added). In so doing, the Supreme Court acknowledged that the parties did not offer much guidance with respect to a section-by-section severability analysis. Nonetheless, it proceeded to consider the question “in part, to the extent that its application is obvious and necessary to provide direction to the parties going forward.” Id. (emphasis added).

With respect to the setbacks in Section 3215(b)(1) through (3) of Act 13 for well locations, the Supreme Court opined that the waiver provision in subsection (b)(4), which the majority held unconstitutional, was “a key part of the Section 3215(b) scheme.” Id.

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Bluebook (online)
146 A.3d 820, 2016 Pa. Commw. LEXIS 375, 2016 WL 4547217, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pennsylvania-independent-oil-gas-assn-v-commonwealth-department-of-pacommwct-2016.