Court rules in favor of DEP in drilling suit
A Pennsylvania appeals court has ruled that the Department of Environmental Protection has the authority to consider the impact of gas drilling wells on public and natural resources when it considers a company’s gas well drilling application.
In a 5-2 ruling in favor of the DEP and against the Pennsylvania Independent Oil and Gas Association, Commonwealth Court said the agency’s considerations include, but are not limited to, public drinking water supplies, parks, forests, game lands, habitats of rare and endangered species, historic and archeological sites, scenic rivers and historic landmarks.
PIOGA represents about 550 members primarily engaged in conventional drilling operations.
The trade group filed legal action in June 2015 asking the court to stop the DEP from requiring well permit applicants to comply with provisions of Act 13 after the state Supreme Court, in December 2013, ruled that certain sections of the law were unconstitutional. The decision came in a lawsuit brought by Robinson Township and three other municipalities. A section of Act 13 that directs the DEP in its decision-making process in issuing permits was negated in that ruling.
One part of that law the Supreme Court clearly struck down was a section that granted the gas industry waivers from established setbacks to streams and wetlands.
PIOGA argued that a different section of Act 13, 3215(c), which requires gas drillers to evaluate the impact on public resources in their applications for well permits, is connected to the issue of setbacks and waivers, and should be ruled unconstitutional as well.
In handing down its decision on Thursday, Commonwealth Court ruled that the agency’s responsibilities regarding the impact of wells on the public cannot be severed, because the Supreme Court in its Robinson decision did not remove the commonwealth’s constitutional obligation to protect public natural resources.
Acting DEP Secretary Patrick McDonnell praised the ruling.
“Today’s ruling is important for DEP’s permitting of oil and gas wells across Pennsylvania,” McDonnell said in a statement. “It unconditionally confirms that the department has legal authority under Act 13 to consider the impact that a proposed well site will have on public and natural resources. This decision will assist the department in its work to ensure responsible development of natural resources in Pennsylvania.”
Two Commonwealth Court justices dissented, agreeing with PIOGA’s argument, saying that as the Robinson decision is written, the Supreme Court intended to declare unconstitutional several sections in addition to the setback waivers.