Recently, the Pennsylvania Supreme Court affirmed a substantial portion of a preliminary injunction obtained by the Marcellus Shale Coalition (MSC) barring enforcement of 2016 regulations that impose various requirements on unconventional oil and gas drilling wells. Portions of the injunction were upheld, barring state environmental regulators from beginning to enforce the new regulations unless and until they are deemed legal in MSC’s upcoming suit in the Commonwealth Court. The Pennsylvania Department of Environmental Protection (DEP) had appealed the Commonwealth Court judge’s preliminary injunction order on four sections of the recently promulgated regulations.

“Public resources” restriction on well locations

The court concluded that there were reasonable grounds for the Commonwealth Court to grant a preliminary injunction to MSC with regard to Chapter 78a.15(f), which extends the definition of “public resources” to include “playgrounds and common areas of a school’s property” and “species of special concern.” MSC argues that the DEP is only authorized by statute to regulate publicly owned natural resources as defined by the Pennsylvania Constitution, and may not expand the definition to include publicly owned property or privately owned property open to the public. The Pennsylvania Supreme Court upheld the injunction with regard to both subsections, finding an absence of clear statutory authority for the DEP to expand the scope of existing regulations.

Monitoring and remediation requirement within specified “area of review”

The court found reasonable grounds for injunction with regard to sections 78a.52(c)(3) and 78a.73(c) and (d), which impose monitoring and remediation obligations on well operators within a specified area of review. The injunction was upheld because of implementation concerns. The regulations would mandate such monitoring, and could even require a well operator to illegally enter private property to monitor and remediate the specified wells. The court noted that the DEP had not demonstrated its statutory authorization to mandate access up to and including trespass on private property without a showing that the well posed danger of pollution.

Closing or re-permitting of centralized impoundments

The court upheld the injunction against section 78a.59(c), which requires existing centralized impoundments to be closed or retrofitted. They found that the Commonwealth Court had a reasonable basis to question whether the DEP is authorized to issue new regulations requiring existing centralized impoundments to be closed or retrofitted, and that the potential irreparable harm to MSC warranted affirmation of the injunction.

Registration and upgrade of existing well-development impoundments

The court reversed the order granting an injunction to MSC with regard to section 78a.59(b), which relates to well-development impoundments. The court noted that the Commonwealth Court failed to address the new well-registration portion of the regulation, granting the injunction solely based on the requirement that existing impoundments be upgraded. The court determined that MSC had not adequately demonstrated that the DEP lacked authority to issue such regulations.

Site restoration requirements for areas not within restoration plan

The court reversed the order granting preliminary injunction with regard to section 78a.65(d), which imposes new site restoration requirements on disturbed areas not included in the restoration plan and impervious surfaces remaining in the post-drilling timeframe. The initial injunction was granted because of an apparent conflict with regulations within the Clean Streams Law (CSL), but the court noted that there was no conflict because the new regulations apply only to areas not included in the restoration plan, whereas the CSL regulations apply to areas within the site restoration plan.