In a decision issued today in Pa. Independent Oil & Gas Assoc. v. Commonwealth, No. 321 M.D. 2015, a seven-member panel of the Pennsylvania Commonwealth Court held that Section 3215(c) of Act 13, the Pennsylvania Oil and Gas Act, remains enforceable despite the Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013). Section 3215(c) provides that when making a determination on a proposed oil and gas well, DEP “shall consider” the impact of the proposed well on public resources, including parks, rivers, landmarks, historic sites, flora and fauna habitat, and public drinking water sources.

In Robinson Township, the Supreme Court invalidated Act 13’s state-wide regulation of oil-and-gas land use decisions and other aspects of the bill’s core provisions. One of those aspects was Section 3215(b), which imposed restrictions on the siting of wells within a certain distance of water bodies and wetlands.

The Petitioner, the Pennsylvania Independent Oil & Gas Association, or “PIOGA,” brought a declaratory judgment action in Commonwealth Court against the DEP seeking a declaration that DEP violates the Supreme Court’s decision in Robinson Township by requiring permit applicants to complete forms and adhere to policies in conjunction with Section 3215(c). PIOGA argued that the Supreme Court’s decision clearly provided that Section 3215(c) was unenforceable by virtue of its holding that “insofar as Section 3215(c) and (e) are part of the Section 3215(b) decisional process, these provisions as well are incomplete and incapable of execution in accordance with legislative intent. Application of Section 3215(c) and (e) is, therefore, also enjoined.”

The Respondent, the Pennsylvania DEP, successfully argued in response that the Supreme Court’s holding with regard to Section 3215(c) was intended and should be interpreted as limited to Section 3215(c)’s applicability to Section 3215(b), which both parties agreed was indisputably enjoined by Robinson Township. Writing for the majority, the Honorable Judge P. Kevin Brobson pointed to the limiting phrases—“insofar as Section 3215(c) and (e) are part of the Section 3215(b) decisional process” and “to the extent that these provisions implement or enforce those Sections of Act 13 which we have found invalid”—and concluded that the Supreme Court did not intend to enjoin the application of Section 3215(c) entirely.

Though the Supreme Court may ultimately be called upon to interpret this aspect of its landmark 2013 decision, in the interim, DEP achieved a victory in defending its right to require well applicants to evaluate and consider the various effects on public resources of each newly sited well in the Commonwealth.