HARRISBURG – A recent ruling from the Commonwealth Court of Pennsylvania deemed state rules used to consider the impact of fracking near playgrounds and recreational facilities as “void and unenforceable.”
A five-member Commonwealth Court panel consisting of judges Mary Hannah Leavitt, Renée Cohn Jubelirer, Robert Simpson, Patricia A. McCullough and Michael H. Wojcik released the unanimous ruling on Aug. 23.
Judge Wojcik authored the panel’s opinion.
“This unanimous decision provides valuable relief from portions of the regulations that are unreasonable, unworkable and exceed EQB and DEP’s statutory authority. MSC absolutely supports commonsense, predictable and workable regulations that are consistent with the authority provided to the Agencies by the General Assembly. We appreciate the court’s careful consideration of the issues before it and its recognition of the regulatory overreach in these Chapter 78a provisions. 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,” Marcellus Shale Coalition President David Spigelmyer said.
The history behind the recent Commonwealth Court decision dates back to 2016, when the state Environmental Quality Board (EQB) published the Chapter 78a Regulations in October of that year. The regulations governed surface activities associated with the development of unconventional wells, and were slated to be enforced by the state Department of Environmental Protection (DEP).
These regulations would mandate operators to consider drilling impacts on specific public resources, creating mitigation methods and reporting this material to a number of state regulatory agencies.
On Oct. 13, 2016, the Marcellus Shale Coalition, a trade organization representing Pennsylvania’s shale gas producers, filed a seven-count lawsuit opposing the implementation of those same regulations.
Specifically, Marcellus Shale Coalition challenged the definitions of certain terms used in the new regulations, such as “other critical communities,” “common areas of a school’s property,” “playground” and “public resource agency” and argued implementing such provisions exceeded the DEP’s authority.
On the concept of what counts as a “playground," Wojcik indicated in the Court’s decision that the EQB’s criteria was too inclusive.
“As for playgrounds, again the definition is so broad as to defy quantification and compliance. The definition embraces publicly and privately owned ‘playgrounds.’ It obviously includes children’s playgrounds, sports fields, and picnic sites,” Wojcik said.
“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.”
Wojcik added that “the regulatory definitions of the terms ‘common areas of a school’s property’ and ‘playground’ are vague, overly broad, and unpredictable thereby making compliance unduly burdensome,” and that ‘common areas of a school’s property’ or ‘playgrounds’ do not share the same attributes as the other public resources identified in the statute because they do not implicate public interest in the same way.”
“In other words, a McDonald’s playground or a school parking lot utilized as a playground are not of the same class or nature as a scenic river, public park, or historical site warranting Commonwealth trustee protection. Although common areas of a school’s property and playgrounds may share some recreational similarities with the statutory public resources, they do not implicate ‘public interest’ in the same way and they are not part of the trust corpus over which the Commonwealth is charged with protecting under the Constitution,” Wojcik said.
Marcellus Shale Coalition had also argued that compiling a list of public resources was unnecessary and determining a number of “public resources” under the EQB’s rules would be “unlimited, unknown and unknowable”.
However, the Commonwealth Court did not agree on this point being onerous and said these determinations could be made usually “visually identifiable” information.
“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,” Wojcik said, referring to the DEP's argument on the subject.
The six remaining counts of Marcellus Shale Coalition’s litigation, such as challenges to the EQB’s standards for on-site processing, impoundments, site restoration, spill remediation and waste reporting are also being considered by the Commonwealth Court. The Court will hear arguments on those matters in October.
Commonwealth Court of Pennsylvania case 573 M.D. 2016
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nickpennrecord@gmail.com