Pre-enforcement Review; Injunctive Relief; Did Commonwealth Court correctly enjoin enforcement of certain oil and gas regulations?
Issues:
The Agencies present the following issues for the Supreme Court’s review:
1) Whether the Commonwealth Court misapplied the essential prerequisites of a preliminary injunction in preliminarily enjoining the challenged public resource protection regulations because they include “common areas of a school’s property of playground” and “species of special concern” as “public resources” and include “playground owners” in the definition of “public resource agency”?
2) Whether the Commonwealth Court misapplied the essential prerequisites of a preliminary injunction in preliminarily enjoining the challenged well monitoring and remediation regulations applicable to abandoned and orphan wells?
3) Whether the Commonwealth Court misapplied the essential prerequisites of a preliminary injunction in preliminarily enjoining the challenged well development impoundment and centralized impoundment regulations?
4) Whether the Commonwealth Court misapplied the essential prerequisites of a preliminary injunction in preliminarily enjoining the challenged well site restoration regulations?
5) Whether the Commonwealth Court’s Memorandum Opinion and Order in this matter created ambiguity and confusion regarding the implementation and enforcement of the enjoined regulations?
Background:
The Department of Environmental Protection (DEP) and the Environmental Quality Board (EQB) (collectively, the “Agencies”) appealed the Commonwealth Court’s November 8, 2016 Order enjoining enforcement of certain regulations in 25 Pa. Code Chapter 78a (related to unconventional (shale) gas wells). On October 13, 2016, the Marcellus Shale Coalition (MSC) filed a Petition for Review in Commonwealth Court’s original jurisdiction requesting Declaratory and Injunctive Relief against the Agencies and seeking pre-enforcement review of: 25 Pa. Code §§ 78a.1 and 78a.15(f), and (g), pertaining to public resources; 25 Pa. Code §§ 78a.52a and 78a.73(c), and (d), pertaining to area of review; 25 Pa. Code § 78a.58(d), pertaining to onsite processing; 25 Pa. Code §§ 78a.59a and 78a.59c, pertaining to impoundments; 25 Pa. Code §§ 78a.645, pertaining to site restoration; 25 Pa. Code § 78a.66(c), pertaining to remediation of spills; and 25 Pa. Code § 78a.121(b), pertaining to waste reporting, and requested injunctive relief from the Chapter 78a Regulations. On October 14, 2016, MSC filed an Application for Expedited Special Relief requesting issuance of a preliminary injunction of the regulations. At hearing on MSC’s Application for Expedited Special Relief, MSC did not present any witnesses. The Agencies presented the testimony of Scott Perry, DEP’s Deputy Secretary for Oil and Gas Management, and introduced nineteen exhibits. MSC’s case consisted of three exhibits and cross-examination of the Agencies’ witness.
By Order dated November 8, 2016, the court per Judge Brobson, partially granted MSC’s Application and enjoined DEP from enforcing the following: Sections 78a.1 and 78a.15(f) and (g), only to the extent that they include “common areas on a school’s property or a playground” and “species of special concern” as “public resources” and include “playground owners” in the definition of “public resource agency“; Section 78a.52(c)(3) and Section 78a.73(c) and (d), only to the extent that they impose monitoring and remediation obligations on owners and operators with respect to wells identified in the area of review survey owned and /or operated by others; Sections 78a.59b(b) and 78.59c in their entirety; and Section 78a.65(d) in its entirety. MSC’s Application was denied in all other respects. The Agencies filed a Notice of Appeal on December 6, 2016.
For more information, contact Kevin McKeon and Dennis Whitaker.