Pennsylvania Appellate Court Shapes Public Notification Requirements for Hydraulic Fracking Operations

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Previously, we reported the Pennsylvania Supreme Court’s decision in Marcellus Shale Coalition v. Department of Environmental Protection, et. al., where the court decided to preserve an injunction against the Department of Environmental Protection of Pennsylvania (DEP) to prevent the enforcement of various new rules pertaining to hydraulic fracturing operations. However, one of DEP’s proposed rules that the PA Supreme Court did not address was the public notification requirement, which, as we predicted, would be scrutinized by the lower courts.

In the Pennsylvania Commonwealth Court’s most recent decision related to challenges by the Marcellus Shale Coalition, some of DEP’s proposed public notice requirements were upheld; however, the court also set forth limitations on when those notice requirements apply.

The proposed notice rules at issue are contained in Section 78a.15(f) of the Chapter 78a Regulations. One of the challenges pertained to the pre-permit process that requires well applicants to provide information to DEP in the well permit applications and notice to applicable public resource agencies. The court decided that authorizing DEP to seek information from well applicants and comments from public resource agencies does not exceed statutory authority and should be part of the environmental impact consideration process. The court noted that without this information, DEP’s ability to consider the potential impacts to public resources would be severely hampered, and therefore upheld this requirement.

Another element of the proposed notification rules set forth by DEP involve the requirement of a well applicant to identify and provide information concerning “other critical communities.” Section 78a.1. Based upon rules of statutory construction, the court reasoned that this provision related to certain “species of special concern,” and ultimately concluded that it was unenforceable because it was tied to an ever-changing list of species and evaded public notice and comment rulemaking procedures. Particularly, the court was concerned by the fact that agencies outside of DEP, including the U.S. Fish & Wildlife Service and the Department of Conservation & Natural Resources, would be able to identify species of special concern outside of a formal rulemaking process. Accordingly, the notice provisions regarding “other critical communities “inappropriately subverted formalities by engaging in policymaking through non-legislative avenues and was deemed void.

Similarly, the proposed notification rules under Section 78a.15(f)(1)(vi) to identify and provide information concerning “common areas of a school’s property” and “playgrounds” in a well permit application were deemed unlawful and unenforceable because the regulatory definitions of those terms are “vague, overly broad, and unpredictable, thereby making compliance unduly burdensome.” Marcellus at 53. The court explained that these terms have a nearly limitless scope, and do not meet the applicable definition of “public resource.” For example, under the regulatory definition, even a playground at a McDonald’s restaurant would qualify as a “public resource” if it included an outdoor area provided to the general public for recreational purposes. The court also stated that “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,” would be considered a “playground.” Marcellus at 52. Because the regulatory definitions “would include thousands of private properties owned by private entities that are not ‘public resources’ as contemplated by [applicable legislation] […] the sheer diversity of these resources renders the proposed regulation unreasonable. Marcellus at 52.

While the repercussions from this decision have yet to be felt on a practical level, proponents of well operations consider the ruling a step in the right direction because it reduces some of the pre-permit procedures. We’ll continue to be on the lookout for industry developments, including challenges to these proposed rules, and the potential impact on fracking activities in this region.