The Marcellus Shale Coalition v. DEP of PA and Environmental Quality Board of PA ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Marcellus Shale Coalition, :
:
Petitioner :
:
v. : No. 573 M.D. 2016
: Argued: December 6, 2017
Department of Environmental :
Protection of the Commonwealth of :
Pennsylvania and Environmental :
Quality Board of the Commonwealth :
of Pennsylvania, :
:
Respondents :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ROBERT SIMPSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
OPINION BY JUDGE WOJCIK FILED: August 23, 2018
Before this Court is the Marcellus Shale Coalition’s (Coalition)1
Application for Partial Summary Relief (Application) seeking summary relief on
Count I of its Petition for Review in the Nature of a Complaint Seeking Declaratory
and Injunctive Relief (Petition). In Count I, the Coalition challenges recently
promulgated regulations related to unconventional oil and gas well operations
contained in Title 25, Chapter 78a of the Pennsylvania Administrative Code
(Chapter 78a Regulations), namely, Section 78a.15(f) and (g) and certain definitions
1
The Coalition describes itself as a non-profit membership organization whose members
explore, produce, transmit, and distribute natural gas from the Marcellus and Utica Shale
formations. See Petition for Review ¶¶3-4.
in Section 78a.1 pertaining to public resources,2 25 Pa. Code §78a.15(f)-(g), 78a.1
(referred to generally as the Public Resource Regulations). For the reasons that
follow, we grant the Application in part with respect to the challenged definitions,
as well as Section 78a.15(g)’s mandate regarding consideration of comments and
recommendations submitted by municipalities, which we declare as void and
unenforceable, and deny the Application in all other respects.
I. Background
The Environmental Quality Board (Board) published the Chapter 78a
Regulations in the Pennsylvania Bulletin on October 8, 2016, which immediately
went into effect. 46 Pa. B. 6431 (2016). The Chapter 78a Regulations relate to
surface activities associated with the development of unconventional wells.
On October 13, 2016, the Coalition filed its Petition against the Board
and the Department of Environmental Protection (Department) (collectively, the
Agencies) seeking pre-enforcement review of the Chapter 78a Regulations. The
Coalition asserts seven counts and requests declaratory relief pursuant to the
Declaratory Judgments Act.3
In Count I, the Coalition challenges the validity of Section 78a.15(f)
and (g) pertaining to public resources and the related definitions contained in Section
78a.1 of the Chapter 78a Regulations. The Coalition claims that Section 78a.15
injects an entirely new pre-permitting process without statutory authority. It
2
Specifically, the Coalition challenges the definitions of “other critical communities,”
“common areas of a school’s property,” “playground,” and “public resource agency” in Section
78a.1 of the Chapter 78a Regulations.
3
42 Pa. C.S. §§7531-7541.
2
challenges the attendant definitions of “other critical communities,” “common areas
of a school’s property,” “playground,” and “public resource agency” in Section
78a.1.4
Contemporaneous with the Petition, the Coalition filed an application
for expedited special relief to preliminarily enjoin the Department’s enforcement of
the Chapter 78a Regulations to prevent immediate, substantial and irreparable harm
to the Coalition and its members. On November 8, 2016, following an evidentiary
hearing,5 this Court granted in part and denied in part the Coalition’s application,
4
In addition, the Coalition asserts the following counts:
 Count II challenging the validity of 25 Pa. Code §§78a.52a and 78a.73(c) and (d),
pertaining to area of review;
 Count III challenging the validity of 25 Pa. Code §78a.58(d), pertaining to onsite
processing;
 Count IV challenging the validity of 25 Pa. Code §§78a.59a and 78a.59c, pertaining to
impoundments;
 Count V challenging the validity of 25 Pa. Code §78a.645, pertaining to site restoration;
 Count VI challenging the validity of 25 Pa. Code §78a.66(c), pertaining to remediation
of spills; and
 Count VII challenging the validity of 25 Pa. Code §78a.121(b), pertaining to waste
reporting.
5
The evidence consisted of:
 Transcript of the EQB meeting held on February 3, 2016;
 Copy of Chapter 78a Regulations;
3
preliminarily enjoining portions of the Chapter 78a Regulations challenged. With
regard to Count I, this Court enjoined application of the Public Resource Regulations
“only to the extent that they include ‘common areas o[f] 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.’” Preliminary
Injunction Order, 11/8/16, at 1-2.
The Agencies appealed the Preliminary Injunction Order to the
Pennsylvania Supreme Court. The Supreme Court affirmed in part and reversed in
part. Marcellus Shale Coalition v. Department of Environmental Protection, 185
A.3d 985 (Pa. 2018). Of relevance here, the Supreme Court affirmed the grant of
preliminary injunctive relief as to Count I on the basis that the Coalition raised a
substantial legal issue in relation to the Public Resource Regulations and satisfied
the other prongs for injunctive relief. Id. at 987-90.
Meanwhile, in this Court, the Agencies jointly responded to the
Petition. We entered a Case Management Order requiring fact and expert testimony
 Regulatory Analysis Form (RAF) submitted to the Independent Regulatory Review
Commission (IRRC) for consideration with Chapter 78a Regulations;
 Letter from the Senate Environmental Resources and Energy Committee to the
IRRC and the [Board], dated April 12, 2016, and letter from the House of
Representatives Environmental Resources and Energy Committee to the IRRC,
dated April 15, 2016 (admitted only for the purpose of establishing that Senate and
House committees participated in the regulatory review process and disapproved of
the proposed Chapter 78a Regulations).
 Testimony of Scott Perry, the Department’s Secretary for the Office of Oil and Gas
Management.
Marcellus Shale Coalition v. Department of Environmental Protection (Pa. Cmwlth., No. 573
M.D. 2016, filed November 8, 2016) (Preliminary Injunction Opinion and Order), slip op. at 9.
4
to conclude by January 31, 2018, and directing the filing of all dispositive motions
by February 28, 2018.6 See Commonwealth Court Order, 7/12/17.
On August 31, 2017, the Coalition filed the present Application seeking
summary relief on Count I of the Petition.7 The Agencies filed an answer in
opposition. The parties then filed briefs in support of their respective positions. In
addition, amici curiae8 filed briefs in support of the Agencies’ position. On
December 6, 2017, this Court sitting en banc heard argument on the Application.
II. Public Resource Regulations
We begin by setting forth the regulations at issue. Section 78a.15(f) of
the Chapter 78a Regulations, which sets forth application requirements, provides:
(f) An applicant proposing to drill a well at a location that
may impact a public resource as provided in paragraph (1)
shall notify the applicable public resource agency, if any,
in accordance with paragraph (2). The applicant shall also
provide the information in paragraph (3) to the
Department in the well permit application.
(1) This subsection applies if the proposed limit of
disturbance of the well site is located:
(i) In or within 200 feet of a publicly owned
park, forest, game land or wildlife area.
6
This date was later extended to March 14, 2018. See Commonwealth Court Order,
2/27/18.
7
On March 14, 2018, the Coalition filed an application for partial summary relief on
Counts III, V and VI of the Petition, which is pending.
8
Damascus Citizens for Sustainability, Inc. and the Sierra Club.
5
(ii) In or within the corridor of a State or
National scenic river.
(iii) Within 200 feet of a National natural
landmark.
(iv) In a location that will impact other
critical communities.
(v) Within 200 feet of a historical or
archeological site listed on the Federal or State list of
historic places.
(vi) Within 200 feet of common areas on a
school’s property or a playground.
(vii) Within zones 1 or 2 of a wellhead
protection area as part of a wellhead protection program
approved under §109.713 (relating to wellhead protection
program).
(viii) Within 1,000 feet of a water well,
surface water intake, reservoir or other water supply
extraction point used by a water purveyor.
(2) The applicant shall notify the public resource
agency responsible for managing the public resource
identified in paragraph (1), if any. The applicant shall
forward by certified mail a copy of the plat identifying the
proposed limit of disturbance of the well site and
information in paragraph (3) to the public resource agency
at least 30 days prior to submitting its well permit
application to the Department. The applicant shall submit
proof of notification with the well permit application.
From the date of notification, the public resource agency
has 30 days to provide written comments to the
Department and the applicant on the functions and uses of
the public resource and the measures, if any, that the
public resource agency recommends the Department
consider to avoid, minimize or otherwise mitigate
probable harmful impacts to the public resource where the
well, well site and access road is located. The applicant
6
may provide a response to the Department to the
comments.
(3) The applicant shall include the following
information in the well permit application on forms
provided by the Department:
(i) An identification of the public resource.
(ii) A description of the functions and uses of
the public resource.
(iii) A description of the measures proposed
to be taken to avoid, minimize or otherwise mitigate
impacts, if any.
(4) The information required under paragraph (3)
shall be limited to the discrete area of the public resource
that may be affected by the well, well site and access road.
25 Pa. Code §78a.15(f) (emphasis added).
Section 78a.15(g), which guides the Department’s consideration,
provides:
(g) The Department will consider the following prior to
conditioning a well permit based on impacts to public
resources:
(1) Compliance with all applicable statutes and
regulations.
(2) The proposed measures to avoid, minimize or
otherwise mitigate the impacts to public resources.
(3) Other measures necessary to protect against a
probable harmful impact to the functions and uses of the
public resource.
(4) The comments and recommendations submitted
by public resource agencies, if any, and the applicant’s
response, if any.
7
(5) The optimal development of the gas resources
and the property rights of gas owners.
25 Pa. Code §78a.15(g) (emphasis added).
The regulations define the following corresponding terms:
Common areas of a school’s property – An area on a
school’s property accessible to the general public for
recreational purposes. For the purposes of this definition,
a school is a facility providing elementary, secondary or
postsecondary educational services.
***
Other critical communities –
(i) Species of special concern identified on a
[Pennsylvania Natural Diversity Inventory (PNDI)9]
receipt, including plant or animal species:
9
The regulations define “PNDI” and “PNDI receipt” as:
PNDI – Pennsylvania Natural Diversity Inventory – The
Pennsylvania Natural Heritage Program’s database containing data
identifying and describing this Commonwealth’s ecological
information, including plant and animal species classified as
threatened and endangered as well as other critical communities
provided by the Department of Conservation and Natural Resources,
the Fish and Boat Commission, the Game Commission and the
United States Fish and Wildlife Service. The database informs the
online environmental review tool. The database contains only those
known occurrences of threatened and endangered species and other
critical communities, and is a component of the Pennsylvania
Conservation Explorer.
PNDI receipt – The results generated by the [PNDI] Environmental
Review Tool containing information regarding threatened and
endangered species and other critical communities.
25 Pa. Code §78a.1.
8
(A) In a proposed status categorized as
proposed endangered, proposed threatened, proposed rare
or candidate.
(B) That are classified as rare or tentatively
undetermined.
(ii) The term does not include threatened and
endangered species.
***
Playground –
(i) An outdoor area provided to the general public
for recreational purposes.
(ii) The term includes community-operated
recreational facilities.
***
Public resource agency – An entity responsible for
managing a public resource identified in §78a.15(d) or
(f)(1) (relating to application requirements) including the
Department of Conservation and Natural Resources, the
Fish and Boat Commission, the Game Commission, the
United States Fish and Wildlife Service, the United States
National Park Service, the United States Army Corps of
Engineers, the United States Forest Service, counties,
municipalities and playground owners.
25 Pa. Code §78a.1 (emphasis added).
III. Issues
The Coalition contends that the new well permit application provisions
in Section 78a.15(f) and (g), along with applicable definitions in Section 78a.1, are
unlawful, unreasonable and unenforceable. Specifically, the Coalition challenges
Section 78a.15(f)(1)(iv) (requiring well applicants to identify and provide
9
information concerning “other critical communities”), 78a.15(f)(1)(vi) (requiring
well applicants to identify and provide information concerning “common areas of a
school’s property or a playground” in a well permit application), 78a.15(f)(2) and
(g) (relating to “public resource agency”), and Section 78a.1 (corresponding
definitions). The Coalition claims that the Public Resource Regulations lack
statutory authorization and contradict Act 13 of 2012, a statute amending the
Pennsylvania Oil and Gas Act (Act 13), 58 Pa. C.S. §§2301-3504,10 as well as other
Pennsylvania statutes and regulations applicable to the industry; are contrary to the
Supreme Court’s holding in Robinson Township v. Commonwealth, 83 A.3d 901
(Pa. 2013) (Robinson II);11 were not promulgated pursuant to proper procedures; are
void for vagueness; violate due process; violate Article III, Section 32 of the
Pennsylvania Constitution; and/or are unreasonable. Petition for Review ¶¶44(a)-
(k). The Coalition further claims that the Board failed to heed the direction of
Section 3215(e) of Act 13, 58 Pa. C.S. §3215(e), to develop criteria to ensure the
optimal development of oil and gas resources and respect the property rights of oil
and gas owners before the Department may impose conditions necessary to protect
10
“Act 13 comprises sweeping legislation affecting Pennsylvania’s environment and, in
particular, the exploitation and recovery of natural gas in a geological formation known as the
Marcellus Shale.” Robinson Township v. Commonwealth, 83 A.3d 901, 913 (Pa. 2013) (Robinson
II).
11
Robinson II is a plurality opinion, authored by former Chief Justice Castille, and joined
by Justice Todd and former Justice McCaffery. Justice Baer joined portions of the opinion, but
authored a concurring opinion where his analysis diverged. Justice Saylor, now Chief Justice, and
former Justice Eakin authored dissenting opinions. Former Justice Orie Melvin did not participate.
To the extent Justice Baer’s “concurring opinion enumerates the portions of the plurality’s opinion
in which the author joins or disagrees, those portions of agreement gain precedential value.”
Commonwealth v. Brown, 23 A.3d 544, 556 (Pa. Super. 2011). This opinion denotes where
Robinson II is precedential.
10
against probable harmful impacts to public resources. The Public Resource
Regulations far exceed any legitimate public resource protection. Where the Public
Resource Regulations give meaning to the words used in Act 13, they are either
untethered from the Agencies’ statutory authority or directly in conflict with it. For
these reasons, the Coalition asks this Court to declare Section 78a.15(f)-(g), and the
definitions of “other critical communities,” “common areas of a school’s property,”
“playground,” and “public resource agency,” in Section 78a.1 as unlawful, void and
unenforceable. As there are no disputed material facts with respect to Count I of the
Petition, the Coalition maintains that Count I is ripe for summary relief.
IV. Discussion
A. Legal Standards
1. Summary Relief
Rule 1532(b) of the Pennsylvania Rules of Appellate Procedure
provides that “the court may on application enter judgment if the right of the
applicant thereto is clear.” Pa. R.A.P. 1532(b); see Scarnati v. Wolf, 173 A.3d 1110,
1118 (Pa. 2017) (“The standard for granting summary relief turns upon whether the
applicant’s right to relief is clear. Summary relief on a petition for review is similar
to the relief provided by a grant of summary judgment. Pa. R.A.P. 1532, Official
Note.”) (footnote omitted). “Summary judgment is appropriate where, after the
close of pleadings, ‘there is no genuine issue of any material fact as to a necessary
element of the cause of action or defense which could be established by additional
discovery or expert report.’” Scarnati, 173 A.3d at 1118 (quoting Pa. R.C.P. No.
1035.2(a)). Conversely, “[w]here there are material issues of fact in dispute or if it
is not clear that the applicant is entitled to judgment as a matter of law, the
application will be denied.” Sherman v. Kaiser, 664 A.2d 221, 225 (Pa. Cmwlth.
1995). “A fact is considered material if its resolution could affect the outcome of
11
the case under the governing law.” Hospital & Healthsystem Association of
Pennsylvania v. Commonwealth, 77 A.3d 587, 602 (Pa. 2013).
The parties dispute whether this matter is ripe for summary relief. The
Coalition asserts that there are no material facts in issue regarding Count I while the
Agencies argue there are. The dispute centers over whether the oil and gas industry
is subject to different treatment. The Coalition contends that Section 78a.15 imposes
new obligations on applicants for well permits not imposed upon other industries.
According to the Coalition, the requirement that unconventional well operators must
protect unlisted “species of special concern” is not reasonably based on any
difference between the unconventional well industry and other industries that
justifies dissimilar treatment.
The Agencies counter that other regulatory programs all require the
equivalent of an “environmental analysis” or “impact analysis” that involves
consideration of impacts to species other than threatened or endangered species. The
Agencies contend that whether the Public Resource Regulations treat the
unconventional gas and oil industry differently is a material fact in dispute.
Contrary to the Agencies’ assertions, the issue of whether the Public
Resource Regulations treat the unconventional gas and oil industry differently by
requiring consideration of “species of special concern” is not a disputed fact but
rather one that may be determined based on comparison of statutory and regulatory
provisions. Thus, we conclude that the Coalition’s Application seeking a declaration
that the Public Resource Regulations are unlawful and unenforceable is ripe for
disposition.12
12
For purposes of a motion for summary relief, the record consists of pleadings, answers
to interrogatories, admissions and affidavits, and other documents of record. Meggett v.
12
2. Declaratory Relief
Petitions for declaratory judgment are governed by the Declaratory
Judgments Act. GTECH Corp. v. Department of Revenue, 965 A.2d 1276, 1285 (Pa.
Cmwlth. 2009). “The purpose of the Declaratory Judgments Act ‘is to settle and to
afford relief from uncertainty and insecurity with respect to rights, status, and other
legal relations, and is to be liberally construed and administered.’” Markham v.
Wolf, 147 A.3d 1259, 1270 (Pa. Cmwlth. 2016) (quoting Section 7541 of the
Declaratory Judgments Act, 42 Pa. C.S. §7541). “Declaratory judgment as to the
rights, status or legal relationships is appropriate only where there exists an actual
controversy.” Id. “An actual controversy exists when litigation is both imminent
and inevitable and the declaration sought will practically help to end the controversy
between the parties.” Id. (quotation omitted). “Granting or denying a petition for a
declaratory judgment is committed to the sound discretion of a court of original
jurisdiction.” Id. (quoting GTECH, 965 A.2d at 1285). With these legal standards
in mind, we examine the Coalition’s substantive claims.
B. Section 78a.15(f) and (g) – “Pre-Permit Process”
1. Contentions
First, the Coalition contends that the “pre-permit process” established
under Section 78a.15(f) and (g) is unlawful and unenforceable. According to the
Coalition, the Agencies have created an elaborate process without statutory
authority, and without fully understanding the burden it imposes on well permit
Pennsylvania Department of Corrections, 892 A.2d 872, 879 n.13 (Pa. Cmwlth. 2006) (citing
Pa. R.A.P. 106 (certain Pennsylvania Rules of Civil Procedure apply to appellate courts in matters
brought in the court’s original jurisdiction)); Pa. R.C.P. No. 1035.1 (defining the record for
considering a request for summary judgment).
13
applicants. Specifically, the Coalition argues that the Public Resource Regulations
are contrary to and circumvent statutory authority, namely, Sections 3211, 3212, and
3212.1 of Act 13. To the extent the Agencies rely on Section 3215(c) of Act 13 for
authority, the Coalition maintains that the Supreme Court found portions of Section
3215(c) unconstitutional in Robinson II, thereby negating the statutory basis for the
Public Resource Regulations.13
In addition, the Coalition challenges the Board’s failure to develop
criteria required by Section 3215(e) of Act 13 as a prerequisite to the Department’s
authority to impose permit conditions related to public resources. Section 78a.15(g)
of the Chapter 78a Regulations is merely an expanded recitation of the statutory
language in Section 3215(c) of Act 13, without any explanation of how the
Department will balance and evaluate each item it must consider to arrive at
appropriate permit conditions.
Finally, the Coalition claims that the Public Resource Regulations fail
to comply with the Regulatory Review Act (Review Act)14 and rulemaking
13
To the extent that the Coalition asserts that Section 3215(c) of Act 13 is unconstitutional
in its brief because it fails to provide ascertainable standards by which the Department is to
consider the impact of wells on public resources, the Coalition did not present this issue in its
Petition or Application. Rather, the Coalition focuses its claims on whether the Public Resource
Regulations are unconstitutional, not Section 3215(c) of the Act. Although the Coalition asserts
that the Supreme Court’s decision in Robinson II enjoined application of Section 3215(c), at no
point did the Coalition plead an independent basis for this Court to find Section 3215(c)
unconstitutional. We decline to entertain this new argument.
14
Act of June 25, 1982, P.L. 633, as amended, 71 P.S. §§745.1-745.14.
14
procedures. More particularly, it asserts the regulatory analysis form (RAF)15 does
not include any estimates for the cost of compliance with mandated mitigation
measures.
The Agencies counter that the Public Resource Regulations are lawful
as they fall squarely within the Department’s statutory authorities and constitutional
duties. The Chapter 78a Regulations were properly promulgated in accordance with
the regulatory review process set forth in the Review Act; the Commonwealth
Attorneys Act;16 the Commonwealth Documents Law (Documents Law);17 and
Sections 1917-A and 1920-A of the Administrative Code of 1929.18 See 46 Pa. B.
6432 (2016). Therefore, the regulations have an extremely strong presumption of
validity, which the Coalition’s claims do not overcome. Most importantly, the
Public Resource Regulations do not change the Department’s powers to issue,
condition, or deny permits. These regulations simply put more information before
the Department as it considers the possible impacts of unconventional natural gas
well development upon public natural resources. It is not unlawful to ask an
applicant to provide more information so that the Department can accurately assess
the potential impacts of the well development on public resources. Section 3215(c)
of Act 13 authorizes the Department to condition well permits to minimize impact
15
The RAF is a form submitted by agencies to the IRRC that contains an analysis of the
proposed regulation, including, inter alia, the statutory authorization for the regulation and
estimates of the cost of compliance. Section 5 of the Review Act, 71 P.S. §745.5.
16
Act of October 15, 1980, P.L. 950, as amended, 71 P.S. §§732-101-732-506.
17
Act of July 31, 1968, P.L. 769, as amended, 45 P.S. §§1102-1602, and 45 Pa. C.S. §§501-
907.
18
Act of April 9, 1929, P.L. 177, added by the Act of December 3, 1970, P.L. 834, as
amended, 71 P.S. §§510-17, 510-20.
15
to public resources. The Coalition’s characterization of Robinson II is incorrect.
Robinson II merely limited, but did not negate, the Department’s authority under
Section 3215(c).
The Agencies further assert that the Public Resource Regulations are
not unconstitutionally vague because they provide ample criteria to guide the
Department in developing appropriate permit conditions. The Public Resource
Regulations establish criteria for the Department to consider the potential impacts of
drilling a proposed unconventional well on surrounding public resources and to
evaluate and condition permits accordingly; require applicants to notify public
resource agencies of potential impacts; and provide public resource agencies the
opportunity to comment.
Finally, the Agencies assert that the Coalition has offered no evidence
or legal argument in support of its claim that the RAF is insufficient with respect to
the cost of compliance with the Public Resource Regulations. The Review Act does
not authorize a challenge to the review conducted by the Independent Regulatory
Review Commission (IRRC).
2. Analysis
a. Statutory Authority
“An agency clearly has the authority to adopt rules with respect to the
administration of a statute where the statute specifically empowers the agency to do
so.” Bailey v. Zoning Board of Adjustment of City of Philadelphia, 801 A.2d 492,
500 (Pa. 2002). A properly promulgated regulation “is valid and binding upon courts
as a statute so long as it is (a) adopted within the agency’s granted power, (b) issued
pursuant to proper procedure, and (c) reasonable.” Tire Jockey Service, Inc. v.
Department of Environmental Protection, 915 A.2d 1165, 1186 (Pa. 2007); accord
16
Bailey, 801 A.2d at 500; Pennsylvania Human Relations Commission v. Uniontown
Area School District, 313 A.2d 156, 169 (Pa. 1973). “[E]ven where a statute does
not explicitly provide an agency with rule-making powers, if the agency is directed
to operate under the statute, the agency may also create rules concerning its
administration of the statute based on its interpretation of the statute.” Bailey, 801
A.2d at 500.
As our Supreme Court has noted:
[S]ubstantive rulemaking is a widely used administrative
practice, and its use should be upheld whenever the
statutory delegation can reasonably be construed to
authorize it. In determining whether a power has been
delegated we are not limited to the letter of the law, but
must look to the purpose of the statute and its reasonable
effect.
Eagle Environmental II, L.P. v. Department of Environmental Protection, 884 A.2d
867, 878 (Pa. 2005) (internal quotations and citations omitted). “[A]n agency’s
interpretation of its enabling statute is entitled to great weight . . . .” Id.
However, this authority is not unfettered. Where an agency creates a
rule pursuant to its interpretative powers, “a court shall only defer to the rule if it is
reasonable and ‘genuinely tracks the meaning of the underlying statute.’” Bailey,
801 A.2d at 500 (quoting Borough of Pottstown v. Pennsylvania Municipal
Retirement Board, 712 A.2d 741, 743 (Pa. 1998)). A court cannot substitute its own
judgment for that of the agency. Uniontown, 313 A.2d at 169. However, no
deference is due where an agency exceeds its legal authority or its interpretation is
clearly erroneous. See Tire Jockey, 915 A.2d at 1186; Eagle Environmental, 884
A.2d at 878.
17
As our Supreme Court has explained, a regulation will survive or fail
based on the following considerations:
An interpretative rule . . . depends for its validity
. . . upon the willingness of a reviewing court to say that
it in fact tracks the meaning of the statute it interprets.
While courts traditionally accord the interpretation of the
agency charged with administration of the act some
deference, the meaning of a statute is essentially a question
of law for the court, and, when convinced that the
interpretative regulation adopted by an administrative
agency is unwise or violative of legislative intent, courts
disregard the regulation . . . .”
Commonwealth v. Gilmour Manufacturing Co., 822 A.2d 676, 679 (Pa. 2003)
(quoting Girard School District v. Pittenger, 392 A.2d 261, 263 (Pa. 1978)).
Indeed, “[a]dministrative agencies are not empowered to make rules
and regulations which are violative of or exceed the powers given them by the
statutes and the law, but must keep within the bounds of their statutory authority in
the promulgation of general rules and orders.” Pennsylvania Association of Life
Underwriters v. Department of Insurance, 371 A.2d 564, 566 (Pa. Cmwlth. 1977),
aff’d, 393 A.2d 1131 (Pa. 1978). “An agency cannot confer authority upon itself by
regulation. Any power exercised by an agency must be conferred by the legislature
in express terms.” Sunrise Energy, LLC v. FirstEnergy Corp., 148 A.3d 894, 907
(Pa. Cmwlth. 2016), appeal denied, 169 A.3d 1025 (Pa. 2017).
Turning to the statutory authority applicable here, Section 3274 of Act
13 expressly grants authority to the Board to promulgate regulations to implement
and fulfill the purpose of the chapter. 58 Pa. C.S. §3274. The purpose of Act 13 is
to “[p]ermit the optimal development of oil and gas resources while at the same time
protecting the health, safety, environment and property of Pennsylvania citizens.”
58 Pa. C.S. §3202(1). Additional purposes include protecting the safety of personnel
18
and facilities employed in coal mining or exploration, development, storage and
production of natural gas or oil; the safety and property rights of persons residing in
areas where mining, exploration, development, storage or production occurs; and the
natural resources, environmental rights and values secured by the Constitution of
Pennsylvania. 58 Pa. C.S. §3202(2)-(4).
In furtherance of these goals, the General Assembly assigned the
Department the duty to consider impacts to public resources when making a
determination on a well permit. Section 3215(c) of Act 13. Specifically, Section
3215(c) provides:
(c) Impact.–On making a determination on a well permit,
the department shall consider the impact of the proposed
well on public resources, including, but not limited to:
(1) Publicly owned parks, forests, game lands and
wildlife areas.
(2) National or State scenic rivers.
(3) National natural landmarks.
(4) Habitats of rare and endangered flora and fauna
and other critical communities.
(5) Historical and archaeological sites listed on the
Federal or State list of historic places.
(6) Sources used for public drinking supplies in
accordance with subsection (b).
58 Pa. C.S. §3215(c) (emphasis added).
In addition, Section 3215(e) provides:
(e) Regulation criteria.–The Environmental Quality Board
shall develop by regulation criteria:
19
(1) For the department to utilize for conditioning a well
permit based on its impact to the public resources
identified under subsection (c) and for ensuring optimal
development of oil and gas resources and respecting
property rights of oil and gas owners.
(2) For appeal to the Environmental Hearing Board of a
permit containing conditions imposed by the department.
The regulations shall also provide that the department has
the burden of proving that the conditions were necessary
to protect against a probable harmful impact of the public
resources.
58 Pa. C.S. §3215(e).
In Robinson II, the Supreme Court considered the constitutionality of
portions of Section 3215 of Act 13. The Supreme Court19 declared Section 3215(b),
authorizing a waiver of setbacks, as unconstitutional and enjoined application or
enforcement of Section 3215(b) “in its entirety.” Robinson II, 83 A.3d at 1000. The
Court also addressed the severability of other provisions in Section 3215, in light of
its conclusion that Section 3215(b) was unconstitutional, including Section 3215(c)
and (e). The Supreme Court concluded, without any additional supporting analysis,
“[I]nsofar 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.” Id. at 999 (emphasis added). The Supreme Court’s
mandate in this regard provides, “Sections 3215(c) and (e), and 3305 through 3309
19
Justice Baer joined in the plurality’s decision with respect to its analysis of Section
3125(b), thereby lending precedential value to this portion of the opinion. Robinson II, 83 A.3d at
1000 (Baer, J., concurring). See Brown, 23 A.3d at 556 (“In cases where a concurring opinion
enumerates the portions of the plurality’s opinion in which the author joins or disagrees, those
portions of agreement gain precedential value.”).
20
are not severable to the extent that these provisions implement or enforce those
Sections of Act 13 which we have found invalid and, in this respect, their application
or enforcement is also enjoined.” Id. at 1000 (emphasis added).
Later, in Pennsylvania Independent Oil and Gas Association v.
Department of Environmental Protection, 146 A.3d 820 (Pa. Cmwlth. 2016), aff’d,
161 A.3d 949 (Pa. 2017) (PIOGA), this Court clarified the Supreme Court’s mandate
in Robinson II with respect to Section 3215(c) and (e). In PIOGA, the petitioner
requested a declaration from this Court that the Department has no authority to
mandate that well permit applicants satisfy any of the requirements of Section
3215(c) because the Supreme Court enjoined enforcement of that provision. We
restated the Supreme Court’s ruling in Robinson II that Section 3215(c) and (e) are
not severable “to the extent” that they implement or enforce Section 3215(b) of Act
13 and enjoined these sections “in this respect.” 146 A.3d at 827-28 (quoting
Robinson II, 83 A.3d at 1000) (emphasis omitted). We interpreted “to the extent”
and “in this respect” as providing a narrower injunction with respect to Section
3215(c) and (e). Id. at 829. We explained that by using this language of limitation,
the Supreme Court only intended to enjoin these provisions in connection to the
water source and waiver setback provisions in Section 3215(b), which the Court
declared unconstitutional. Id. “In practice, this means that when [the Department]
considers the impact of a proposed well” on public resources, “it is not constrained
to do so ‘in accordance with’ enjoined Section 3215(b).” Id. at 829-30. Contrary to
the Coalition’s assertions, Robinson II did not negate the statutory basis for the
Public Resource Regulations. PIOGA. Rather, it just curtailed it with respect to
water source and waiver setback provisions. See id. Therefore, Section 3215(c), to
21
the extent it does not implicate Section 3215(b), remains a viable source of statutory
authority for the Public Resource Regulations.
In addition, Sections 3211 and 3212 of Act 13 provide express
requirements for well permit applicants to provide notice to certain enumerated
parties and objection opportunities for a subset of such parties. Section 3211 of Act
13 provides detailed instructions related to well permits, including the information
to be provided in a well permit application, a specific list of persons to whom the
plat must be mailed, and the nature of this third-party notification. The General
Assembly revised several subsections in Act 13 to include specific direction
regarding notice of well permit applications. See Section 3211(a) (revised to include
permits to operate abandoned or orphan wells), (b) (revised to require additional
information in the permit application, including a list of municipalities adjacent to
the well site and water supply owners within 3,000 feet of an unconventional well
bore, and that plats be forwarded to an expanded list of persons in an expanded
geographic area for unconventional oil and gas operations), and (b.2) (directing
revisions to the well permit application form). In addition, Section 3211(e) of Act
13 requires the Department to issue well permits within 45 days of submission unless
it denies the permit application for one of the express reasons set forth in subsection
3211(e.1). 58 Pa. C.S. §3211(e). Section 3212.1 of Act 13 defines who may
comment on or object to a well permit application. 58 Pa. C.S. §3212.1.
With this statutory authority in mind, we examine the Coalition’s
challenge to the pre-permit process that requires well applicants to provide
information to the Department in the well permit applications and notice to
applicable public resource agencies, and sets forth the information the Department
will consider prior to conditioning a well permit based on impacts to public
22
resources. 25 Pa. Code §75a.15(f), (g). Act 13 requires the Department to consider
the impact of proposed wells on various public resources when making a
determination on a well permit. 58 Pa. C.S. §3215(c). To do this, the Department
must have information at its disposal. Act 13 does not restrict how the Department
should gather the information necessary to consider the impacts on public resources.
Well applicants and public resource agencies have the knowledge and expertise
about the public resources in the vicinity of the proposed well, the functions and uses
of those public resources, and how those functions and uses may be impacted by
drilling unconventional wells. See 25 Pa. Code §78a.15. Soliciting information
from the well applicant and public resource agencies for consideration furthers the
purpose of Act 13. It is only logical to enable the Department to acquire information
necessary to perform its statutory duties.
To the extent the Coalition argues that the statutory language merely
authorizes the Department to consider the impacts, but does not impose any new
obligations on permit applicants, this argument fails. The General Assembly
charged the Department with the duty of assessing impact to public resources.
58 Pa. C.S. §3215(c). Where additional information is necessary for the Department
to carry out its statutory duties, the Department is acting within its discretion by
seeking this information from the well applicant. Without this information, the
Department’s ability to consider the potential impacts to public resources would be
severely hampered. Thus, we conclude that the Public Resource Regulations do not
exceed statutory authority by authorizing the Department to seek information from
well applicants and comments from public resource agencies as part of its impact
consideration.
23
b. Section 3215(e) of Act 13 – Criteria
Next, we consider whether Section 78a.15(g) of the Chapter 78a
Regulations fails to set forth criteria that the Department must consider in
conditioning a well permit based on impacts to public resources as required by
Section 3215(e). Although the General Assembly may authorize an agency to
promulgate regulations to implement and fulfill the purpose of the statute, it must
provide sufficient direction or parameters to the agency. See U.S. Organizations for
Bankruptcy Alternatives, Inc. v. Department of Banking, 991 A.2d 370, 374 (Pa.
Cmwlth. 2010), appeal quashed, 26 A.3d 474 (Pa. 2011). However, the General
Assembly may not delegate authority in the absence of standards or restraints. See
id. (regulation declared unconstitutional as a standard-less delegation of authority
because the authorizing statute provided no standards or restraints on the agency’s
authority to set and regulate fees). “Due process requires that a statute give fair
warning of its prohibition.” Boron v. Pulaski Township Board of Supervisors, 960
A.2d 880, 886 (Pa. Cmwlth. 2008).
Indeed, this Court has set aside statutes and regulations as
unconstitutionally vague where they leave people of ordinary intelligence guessing
at their meanings. See, e.g., Whymeyer v. Commonwealth, 997 A.2d 1254, 1259-60
(Pa. Cmwlth. 2010) (regulation requiring applicant to have graduated from an
“approved engineering curriculum” of four or more years was unconstitutionally
vague); Boron, 960 A.2d at 886 (ordinance held unconstitutionally vague because it
did not define “state recognized holidays” or provide any guidance on how to
determine when such holidays occur); Watkins v. State Board of Dentistry, 740 A.2d
760, 764 (Pa. Cmwlth. 1999) (regulation declared unconstitutionally vague because
24
it did not define “appropriate monitoring equipment,” which was capable of more
than one meaning).
By way of further example, our Supreme Court in Robinson II found
Section 3215(b) unconstitutional because it failed to describe what additional
measures were “necessary” for a waiver of setbacks to be appropriate. As the Court
explained:
what the crucial term “necessary” entails in the context of
Section 3215(b) remains malleable and unpredictable. The
statute does not provide any ascertainable standards by
which public natural resources are to be protected if an oil
and gas operator seeks a waiver of the Section 3215(b)
setbacks. The statement of legislative intent, which
simply articulates broad principles, offers no additional
clarification regarding the environmental standard
governing either the applicant or the [Department].
Moreover, Act 13 offers no reference, however oblique, to
any requirement that the Department is obligated to
consider the Commonwealth’s environmental statutes in
rendering its permit decisions or imposing well permit
conditions under Act 13.
Robinson II, 83 A.3d at 983. Ultimately, the Supreme Court ruled that “the Section
3215(b) scheme lacks identifiable and readily-enforceable environmental standards
for granting well permits or setback waivers, which yields at best arbitrary terms and
conditions and, at worst, wholly ineffective protections for the waters of the
Commonwealth.” Id.
At issue here, Section 3215(e) directs the Board to develop regulation
criteria for the Department to use in conditioning well permits based on the impact
to public resources identified and for ensuring optimal development of oil and gas
resources and respecting property rights of oil and gas owners.
25
58 Pa. C.S. §3215(e)(1). It also directs the Board to develop regulations for appeal
of any condition imposed by the Department. 58 Pa. C.S. §3215(e)(2).
Pursuant to Section 78a.15(g) of the Chapter 78a Regulations, the
Department will consider compliance with applicable statutes and regulations;
proposed measures to avoid, minimize or otherwise mitigate impacts to public
resources; other measures necessary to protect against a probable impact to the
functions and uses of a public resource; comments and recommendations from
public resource agencies; and the optimal development of gas resources and property
rights. Subsection (g) more or less echoes the statutory language in Section 3215(e)
as to what the Department shall consider prior to conditioning a well permit based
on impacts to public resources. Compare 58 Pa. C.S. §3215(e) with 25 Pa. Code
§78a.15(g). Although we understand the Coalition’s desire to see more criteria in
the regulations, the absence of additional criteria does not render the Public Resource
Regulations illegal or void for vagueness. The regulation is simply a restatement or
recitation of the statute. The Coalition does not argue that Section 3215(e) is
unconstitutional. Therefore, we decline to invalidate the regulation as
unconstitutionally vague on this basis.
c. Rulemaking Procedures
As for the Coalition’s rulemaking challenge, under the second criterion
for review of regulations, we consider whether the regulation was issued pursuant to
proper procedures. Tire Jockey, 915 A.2d at 1186. The Review Act requires
governmental agencies to follow detailed procedures when they promulgate
regulations. Agencies must develop an RAF under the Review Act to provide the
IRRC with information necessary for its review. Section 5 of the Review Act, 71
26
P.S. §745.5. The RAF must include, inter alia, a citation to the statutory or
regulatory authority, a statement of need, an economic impact statement, estimates
of direct and indirect costs, identification of the financial impact, a description of the
economic and social impact of the regulation on small businesses, and a description
of the data upon which the regulation is based. Id. Proposed and final regulations
from the Board must be submitted to the IRRC for review, recommendations, and
approval or denial. Sections 5 and 5.1 of the Review Act, 71 P.S. §§745.5, 745.5a.
In addition, “[p]rior to submitting a proposed rulemaking, the agency
head shall evaluate each regulation and attest to the fact that the regulation addresses
a compelling public need that can be best remedied by the promulgation of the
regulation.” 4 Pa. Code §1.374(a). This rule also requires that the agency submit a
cost/benefit analysis of the regulation, non-regulatory alternatives considered and
the reasons for their dismissal, and any requirements that would place the
Commonwealth at a competitive disadvantage compared to other states. 4 Pa. Code
§1.374(b)(13), (14), (17). A regulation that does not comply with the Review Act is
invalid. See Bedford v. Commonwealth, 972 A.2d 53, 62 (Pa. Cmwlth. 2009)
(holding that “an agency’s regulation must also undergo legislative scrutiny in
accordance with the . . . Review Act” and the “effect of an agency’s failure to
promulgate a regulation in accordance with these various statutory requirements is
to have the regulation declared a nullity”); Physicians Insurance Co. v. Callahan,
648 A.2d 608, 617 (Pa. Cmwlth. 1994) (declaring invalid a regulation promulgated
in violation of the Documents Law and Review Act).
In Bedford, the petitioner challenged a Department policy on the basis
that it did not go through the rulemaking process. Bedford clearly holds that a
regulation must undergo the regulatory review process to be valid. Bedford,
27
972 A.2d at 62. However, Bedford does not stand for the proposition that a party
may challenge the validity of a regulation based on the sufficiency of information
submitted to the IRRC pursuant to the Review Act. See id. Indeed, Section 745.2(d)
of the Review Act provides, “This act is not intended to create a right or benefit,
substantive or procedural, enforceable at law by a person against another person or
against the Commonwealth, its agencies or its officers.” Section 2(d) of the Review
Act, 71 P.S. §745.2(d).
Here, the Department developed the RAF under the Review Act and
provided the IRRC with the information necessary for its review. The RAF includes
the statutory authority for the regulation and a statement of need. Commonwealth
Court Preliminary Injunction Hearing, Stipulated Hearing Exhibit No. 2 at 5 (RAF).
With respect to cost estimates for mitigation measures, the Department asserted in
the RAF that the identification of public resources and coordination with public
resource agencies would impose new costs of over $800,000 annually. With regard
to mitigation, the RAF provides:
The final step in the process is mitigation. The cost
estimate for mitigation will vary. In some circumstances,
an operator may be able to plan the location of the well site
using the planning tool discussed above to avoid public
resources resulting in zero cost. Any cost associated with
mitigation measures is dependent on many variables and
may be situation specific in some cases. While the
Department is unable to provide a specific estimate for the
implementation of this entire provision, it should be noted
that this cost may be substantial depending on the location
of the well site.
Id. at 87 (emphasis added).
The Coalition takes issue with the fact that the Department did not
provide a specific estimate for the cost of mitigation. On this basis, the Coalition
28
maintains that the Public Resource Regulations were not properly promulgated and
are, therefore, invalid. Although the Department did not set forth a specific estimate,
it did provide a general estimate of the cost of compliance, i.e., from “zero” to
“substantial” depending on the situation. Id. As the Department explained in the
RAF, the costs associated with mitigation measures will vary from case to case. Id.
The Department further explained that, in some circumstances, an operator may be
able to plan the location of the well using the Pennsylvania Conservation Explorer’s
online planning tool, a tool that allows operators to identify the location of the
majority of public resources listed in Section 78a.15(f)(1), and site their operations
so as to avoid public resources with zero costs. Id. at 86-87, 107-08. There is no
evidence to suggest that the IRRC’s review of the Public Resource Regulations was
in any way thwarted by the lack of a more specific cost estimate. Thus, we conclude
there is no clear right to relief on this point. For these reasons, we decline to declare
the permitting process devised under Section 78a.15(f) and (g) invalid and
unenforceable.
C. “Other Critical Communities”
1. Contentions
Next, the Coalition contends that Section 78a.15(f)(1)(iv)’s
requirement to identify and provide information concerning “other critical
communities” as defined in Section 78a.1 is unlawful and unenforceable. The term
“other critical communities,” which was in the predecessor to Act 13, remained
unchanged and undefined in Act 13. The regulations now define “other critical
communities,” for the first time, to include any “species of special concern” as
identified on a PNDI receipt. 25 Pa. Code §78a.1. The phrase “species of special
concern” is not contained within or authorized by Act 13. The special concern
29
species provisions bypass the Documents Law’s formal notice and comment
rulemaking process. In addition, the special concern species provisions violate the
prohibition against special laws contained in Article III, Section 32 of the
Pennsylvania Constitution and the Documents Law. Finally, the Coalition asserts
that the Agencies lack jurisdiction over species of special concern; the PNDI receipt
is managed by the Department of Conservation and Natural Resources (DCNR), not
by the Agencies.
The Agencies respond that the broad scope of Act 13 supports
protection of species of special concern. Section 3215(c) clearly intends to include
more than simply “threatened” species. The term “threatened” has a particular legal
meaning. The General Assembly chose not to use that term in Section 3215, and
instead opted for the more expansive term of “other critical communities.” To
conclude otherwise treats the phrase “other critical communities” as mere
surplusage, which is contrary to the principles of statutory interpretation. Moreover,
the regulatory definition of “other critical communities” manifests the Department’s
past practices and policies and codifies the process used prior to the adoption of the
regulation. Defining “other critical communities” as “species of special concern”
does not create a special law prohibited by Article III, Section 32 of the Pennsylvania
Constitution. Contrary to the Coalition’s assertions, the Public Resource
Regulations do not treat the unconventional gas industry as a special class, i.e., the
only earth-disturbance industry for which the Department considers impacts upon
species other than those that are threatened or endangered. Other regulatory
programs protect special concern species beyond those classified as threatened and
endangered. Further, “species of special concern” does not violate the Documents
Law because the General Assembly intended no such restraint on the consideration
30
of public resources. Finally, although the Agencies may lack jurisdiction over the
species of special concern, the Agencies are constitutionally and statutorily charged
with protecting public resources.
2. Analysis
a. Statutory Authority
The statutory concept of “public resources” embodied in Act 13 and the
Public Resource Regulations derives from Article I, Section 27 of the Pennsylvania
Constitution, which provides:
The people have a right to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic
values in the environment. Pennsylvania’s public natural
resources are the common property of all the people,
including generations yet to come. As trustee of these
resources, the Commonwealth shall conserve and
maintain them for the benefit of all the people.
Pa. Const. art. I, §27; see Pennsylvania Environmental Defense Foundation v.
Commonwealth, 161 A.3d 911, 931-32 (Pa. 2017) (PEDF) (discussing this
constitutional provision); see also 58 Pa. C.S. §3202(4) (stating that the purpose of
Act 13 is to “[p]rotect the natural resources, environmental rights and values secured
by the Constitution of Pennsylvania”). Section 27 establishes a common law trust,
with the Commonwealth as trustee and the public natural resources managed by the
Commonwealth as the corpus of the trust. PEDF, 161 A.3d at 931; see Robinson II,
83 A.3d at 980. The trustee is obligated to conserve, maintain and manage the corpus
of the trust for the benefit of the trust’s beneficiaries – the people. PEDF, 161 A.3d
at 932; see Robinson II, 83 A.3d at 980.
As the plurality of the Pennsylvania Supreme Court opined in Robinson
II, the constitutional concept of “public natural resources” includes:
31
not only state-owned lands, waterways, and mineral
reserves, but also resources that implicate the public
interest, such as ambient air, surface and ground water,
wild flora, and fauna (including fish) that are outside the
scope of purely private property.
Robinson II, 83 A.3d 901, 955 (emphasis added). “[T]he concept of public natural
resources [is] flexible to capture the full array of resources implicating the public
interest, as these may be defined by statute or at common law.” Id. at 955.
In furtherance of its trustee duties, the General Assembly directed the
Department to consider impacts of a proposed well on “public resources” when
determining whether to grant a well permit or add permit conditions to avoid
potentially negative impacts from fracking activities. 58 Pa. C.S. §3215(c). Section
3215(c) of Act 13 identifies, with emphasis added, “public resources” as “including,
but not limited to . . . habitats of rare and endangered flora and fauna and other
critical communities.” Id. However, Act 13 does not define the term “other critical
communities.” See Section 3203 of Act 13, 58 Pa. C.S. §3203 (Definitions).
Section 78a.1 of the Chapter 78a Regulations defines “other critical
communities,” for the first time, to include any “species of special concern” as
identified through the PNDI. 25 Pa. Code §78a.1. “Species of special concern”
includes species categorized as “proposed endangered, proposed threatened,
proposed rare or candidate” and “classified as rare or tentatively undetermined.” Id.
The Department’s Policy for PNDI Coordination During Permit Review and
Evaluation, Document No. 021-0200-011, dated May 25, 2013 (2013 PNDI
Policy),20 defines “species of special concern” as:
20
The 2013 PNDI Policy is available on the Department’s website at:
http://www.gis.dcnr.state.pa.us/PNDI/021-0200-001%20PNDI%20Policy.pdf (last visited July
30, 2018). The policy is also attached to the Petitioner’s Brief as Appendix C.
32
Plant and animal species that are not listed as threatened
or endangered by a jurisdictional agency, but are
identified on a PNDI Receipt as an at risk species. These
include: (1) plant and animal species that are classified as
rare, vulnerable, tentatively undetermined or candidate,
(2) taxa of conservation concern and (3) special concern
plant populations.
2013 PNDI Policy at 1 (emphasis added).21
What the General Assembly meant by “other critical communities” and
whether the regulatory definition of this term exceeds the scope of the statute is a
matter of statutory construction. Accordingly, we turn to the Statutory Construction
Act of 1972 (Statutory Construction Act)22 for guidance, which applies to statutes
and regulations alike. Bayada Nurses, Inc. v. Department of Labor and Industry,
958 A.2d 1050, 1055 (Pa. Cmwlth. 2008), aff’d, 8 A.3d 866 (Pa. 2010).
The object of statutory construction is to ascertain and effectuate
legislative intent. Section 1921(a) of the Statutory Construction Act,
1 Pa. C.S. §1921(a); Whitmoyer v. Workers’ Compensation Appeal Board
(Mountain Country Meats), 186 A.3d 947, 954 (Pa. 2018). In pursuing that end, we
are mindful that a statute’s plain language generally provides the best indication of
legislative intent. Id.; see Commonwealth v. McClintic, 909 A.2d 1241, 1243 (Pa.
2006). Thus, statutory construction begins with an examination of the text itself.
21
PNDI is managed by DCNR. DCNR, along with other jurisdictional agencies (the
Pennsylvania Fish and Boat Commission, the Pennsylvania Game Commission, and the
Pennsylvania Office of the Fish and Wildlife Service) populate the database with special concern
species. See 2013 PNDI Policy at 1. The special concern species list is available on the
Pennsylvania Natural Heritage Program (PNHP) website at:
http://www.naturalheritage.state.pa.us/docs/pndi_specieslist_Jan2014.pdf (last visited July 30,
2018). See Petitioner’s Brief, Appendices E (PNHP Species List as of January 28, 2014) and F
(Department’s Response to the Coalition’s First Set of Requests for Admissions, at No. 7).
22
1 Pa. C.S. §§1501-1991.
33
Southeastern Pennsylvania Transportation Authority v. Holmes, 835 A.2d 851, 856
(Pa. Cmwlth.), appeal denied, 848 A.2d 930 (Pa. 2003).
“[W]e are instructed to give the statute its obvious meaning whenever
the language is clear and unambiguous.” Whitmoyer, 186 A.3d at 954 (citing 1
Pa. C.S. §1921(b)). “To that end, we will construe words and phrases according to
their common and approved usage.” Id. (citing Section 1903 of the Statutory
Construction Act, 1 Pa. C.S. §1903(a)). “Further, every statute shall be construed,
if possible, to give effect to all its provisions so that no provision is ‘mere
surplusage.’” Id. (citing 1 Pa. C.S. §1921(a)); Malt Beverage Distributors
Association v. Pennsylvania Liquor Control Board, 918 A.2d 171, 175-76 (Pa.
Cmwlth. 2007), aff’d, 974 A.2d 1144 (Pa. 2009). “In addition, in determining
whether language is clear and unambiguous, we must assess it in the context of the
overall statutory scheme, construing all sections with reference to each other, not
simply examining language in isolation.” Whitmoyer, 186 A.3d at 954.
If the language is clear and unambiguous, it must be applied. See id.;
1 Pa. C.S. §1921(b). If, however, the language is “not explicit” or ambiguous, we
may look to considerations beyond the text such as the occasion and necessity for
the statute, the mischief to be remedied, the former law, including other statutes upon
the same or similar subjects, and the consequences of a particular interpretation. 1
Pa. C.S. §1921(c); see Whitmoyer, 186 A.3d at 954. Moreover, we are to assume
the General Assembly did not intend a result that is “absurd, impossible of execution
or unreasonable.” Section 1922(1) of the Statutory Construction Act, 1
Pa. C.S. §1922(1).
Generally, “an administrative agency’s interpretation of a statute for
which it has enforcement responsibility is entitled to substantial deference.” Malt
34
Beverage, 918 A.2d at 176 (quoting Pottstown, 712 A.2d at 744). However, where
an administrative interpretation is clearly erroneous, inconsistent with the statute
itself under which it was promulgated, or where the statute’s meaning is
unambiguous, such an interpretation carries little or no weight and may be
disregarded. Terminato v. Pennsylvania National Insurance Co., 645 A.2d 1287,
1293 (Pa. 1994); Malt Beverage, 918 A.2d at 176.
We are also guided by the doctrine of ejusdem generis, which means
“of the same kind or class.” Department of Environmental Protection v.
Cumberland Coal Resources, LP, 102 A.3d 962, 976 (Pa. 2014). This doctrine
provides that when general expressions such as “including” or “including, but not
limited to” precede a list of specific items, the general words are to be interpreted as
“words of enlargement and not limitation.” Id. When interpreting a non-exhaustive
statutory list, “any additional matters purportedly falling within the definition, but
that are not express, must be similar to those listed by the legislature and of the same
general class or nature.” Id. However, items that are not of the same general nature
or class as those enumerated should not be included. Id. The critical inquiry is
whether items are of the “same general class or nature” as the included items. Id.
Applying these tenets of statutory construction here, we first examine
the plain language of a statute and construe words and phrases according to rules of
grammar and according to their common and approved usage. 1 Pa. C.S. §1903(a);
Whitmoyer, 186 A.3d at 954. In determining the common and approved usage or
meaning of undefined statutory terms, courts may turn to standard dictionary
definitions. SugarHouse HSP Gaming, L.P. v. Pennsylvania Gaming Control
Board, 162 A.3d 353, 376 (Pa. 2017); In re Beyer, 115 A.3d 835, 839 (Pa. 2015).
35
Section 3215(c) of Act 13 identifies “public resources” as “including,
but not limited to . . . . habitats of rare and endangered flora and fauna and other
critical communities” – terms not defined by Act 13. 58 Pa. C.S. §3215(c). Within
the context of the statute, the key modifiers of the specified items are “rare,”
“endangered” and “critical.” Applying common and approved usage to these terms,
within the context in which they appear, “rare” means “seldom occurring or found”;
“endangered” means “threatened with extinction”; and “critical” means “being in or
approaching a state of crisis .” Merriam-Webster’s Collegiate
Dictionary 307, 410, 976 (9th ed. 1987).
In other statutory contexts dealing with the protection of the
environment and public resources, the terms “rare” and “endangered” are assigned
particular legal meanings or given special classifications. For instance, in Section
102 of the Pennsylvania Fish and Boat Code, “endangered species” are species
which have been declared to be “threatened with extinction” by the federal or state
jurisdictional agency and appear on the published endangered species lists. 30
Pa. C.S. §102. Similarly, under the Section 1532(6) of the federal Endangered
Species Act, “[t]he term ‘endangered species’ means any species which is in danger
of extinction throughout all or a significant portion of its range . . . .” 16 U.S.C.
§1532(6). Under Section 7 of the Pennsylvania Wild Resource Conservation Act,
the term “rare” refers to species that are uncommon because they are at or near the
peripheral of their distribution. Act of June 23, 1982, P.L. 597, 32 P.S. §5307.
Although the term “other critical communities” is not referenced or
defined in other statutory contexts, the term “critical habitat” is. Section 7 of the
Wild Resource Conservation Act provides that endangered species are in danger of
extinction and threatened species are likely to become endangered “throughout all
36
or most of its range if critical habitat is not maintained or is greatly exploited by
man.” 32 P.S. §5307 (emphasis added). In addition, under Section 8 of the Keystone
Recreation, Park and Conservation Fund Act, the Department of Community
Affairs, in consultation with the Department, “shall adopt project selection criteria
that give priority to acquisitions of critical habitat for rare, threatened or endangered
plant or animal species or communities which are at risk of destruction or substantial
degradation.” Act of July 2, 1993, P.L. 359, 32 P.S. §2018 (emphasis added).
Section (5)(A) of the federal Endangered Species Act defines the term
“critical habitat” for “threatened or endangered species” as:
(i) the specific areas within the geographical area occupied
by the species, at the time it is listed in accordance with
the provisions of section 1533 of this title, on which are
found those physical or biological features (I) essential to
the conservation of the species and (II) which may require
special management considerations or protection; and
(ii) specific areas outside the geographical area occupied
by the species at the time it is listed in accordance with the
provisions of section 1533 of this title, upon a
determination by the Secretary that such areas are essential
for the conservation of the species.
16 U.S.C. §1532(5)(A).
Although the General Assembly did not define “other critical
communities,” the text and context of Section 3215(c) of Act 13, as well as the
General Assembly’s other statutory pronouncements, suggest the foregoing
meaning. When used to describe flora and fauna, the implication is that these species
are at risk of destruction or substantial degradation warranting consideration and
more active management to preserve and protect the species for the benefit of all the
people. See 58 Pa. C.S. §3215(c); see also Section 5302 of the Wild Resource
37
Conservation Act, 32 P.S. §5302 (providing legislative findings pertaining to rare or
endangered flora and fauna).
Applying the doctrine of ejusdem generis, we examine whether the
regulatory term “species of special concern” is of the same general nature or class
as the statutory items listed. According to common and approved usage, the term
“concern” ordinarily describes something of “marked interest” or “importance,” “a
matter for consideration.” Merriam-Webster’s Collegiate Dictionary at 272. Even
when enhanced by the word “special,” the regulatory term is not quite on par with
the statute’s terms of “rare,” “endangered,” and “critical.” According to the
regulation itself, a species of special concern refers to species that are “proposed” to
be endangered or threatened, or their status is undetermined. Id. Within that context,
a species of special concern represents a less imminent or potential conservation
threat, i.e., something proposed to be at risk, certainly worthy of monitoring by
jurisdictional agencies, but perhaps not at imminent risk warranting heightened
conservation measures. It does not appear that “species of special concern” is of the
same general nature or class as the statutory items listed. Therefore, the question
remains, what did the General Assembly intend by “other critical communities.”
Notably, Section 3215(c) of Act 13 does not include the term
“threatened” species in the list of items. “Threatened” means “to give signs or
warning of” . . . “to announce as intended or possible.” Merriam-Webster’s
Collegiate Dictionary at 1229. Both federal and state law define “threatened
species.” Under the federal statute, the term “‘threatened species’ means any species
which is likely to become an endangered species within the foreseeable future
throughout all or a significant portion of its range.” 16 U.S.C. §1532(20). Under
38
Pennsylvania law, Section 102 of the Game and Wildlife Code similarly defines
“threatened species” as:
All species and subspecies of wildlife which have been
declared by:
(1) the Secretary of the United States Department of the
Interior to be in such small numbers throughout their range
that they may become endangered if their environment
worsens and appear on a Threatened Species List
published in the Federal Register; or
(2) the director to be in such small numbers throughout
their range that they may become endangered if their
environment worsens and appear on the Pennsylvania
Threatened Species List published in the Pennsylvania
Bulletin.
34 Pa. C.S. §102; see also Section 102 of the Fish and Boat Code, 30 Pa. C.S. §102
(similarly defining the term as it relates to “[a]ll species and subspecies of fish”).
The Coalition argues that the General Assembly surely intended
threatened species to fall within the category of “other critical communities.” The
Agencies counter that the General Assembly, by deliberately not using the term
“threatened species,” intended for “other critical communities” to mean something
else. The Agencies argue their interpretation is logical because the Department
“commonly requires permit applicants in other environmental permitting programs
to consider and mitigate potential impacts to species other than threatened or
endangered.” Respondents’ Brief at 11. In support, the Agencies cite examples
from regulations pertaining to surface mining of coal, 25 Pa. Code Chapters 86-90,
dam safety and waterway management, 25 Pa. Code Chapter 105, and municipal
waste management, 25 Pa. Code Chapter 271. Id.; see, e.g., 25 Pa. Code §87.84
(“An application shall include a description of how, to the extent possible using the
39
best technology currently available, the operator will minimize disturbances and
adverse impacts on fish and wildlife and related environmental values. . . .”); 25 Pa.
Code §105.13(e)(1)(x) (requiring detailed analysis of potential impacts to “fish and
wildlife”); 25 Pa. Code §271.127 (“Each environmental assessment in a permit
application shall include at a minimum a detailed analysis of the potential impact of
the proposed facility on the environment, public health and public safety, including
traffic, aesthetics, air quality, water quality, stream flow, fish and wildlife, plants,
aquatic habitat, threatened or endangered species, water uses, land use and municipal
waste plans. . . .”).
However, the General Assembly clearly authorized the protection of
species other than threatened or endangered in the enabling statutes. See Section 1
of the Surface Mining Conservation and Reclamation Act, Act of May 31, 1945,
P.L. 1198, as amended, 52 P.S. §1396.1 (purpose of the act is to provide for the
protection of wildlife and the environment in general and prevent pollution of rivers
and streams from surface mining); Section 4(a)(2) of the Surface Mining
Conservation and Reclamation Act, 52 P.S. §1396.4(a)(2) (applications must
include reclamation plan including a statement of the land use proposed after mining
and reclamation are completed, which will not be approved unless the application
demonstrates that the use does “not present any actual or potential threat to public
health or safety or to fish and wildlife”); Section 9 of the Dam Safety and
Encroachments Act, Act of November 26, 1978, P.L. 325, as amended, 32
P.S. §693.9 (the Department shall have the power to grant a permit if the proposal
complies with all other applicable laws administered by the Department, the
Pennsylvania Fish Commission and any river basin commission or may impose such
terms and conditions as necessary to assure compliance); Section 105 of
40
Pennsylvania Solid Waste Management Act, Act of July 7, 1980, P.L. 380, as
amended, 35 P.S. §6018.105 (the Board shall have the power to adopt “regulations
relating to the protection of safety, health, welfare and property of the public and the
air, water and other natural resources of the Commonwealth”); Section 502 of the
Solid Waste Management Act, 35 P.S. §6018.502 (applications must set forth the
manner in which the operator plans to comply with enumerated environmental laws).
In contrast, the General Assembly has not made it clear that it intended to protect
non-threatened or non-endangered “species of special concern” in Act 13.
Furthermore, the Agencies’ proffered interpretation does not protect
threatened species. The regulatory definition of “other critical communities”
expressly omits “threatened species.” See 25 Pa. Code §78a.1(ii) (the term “other
critical communities” does not include “threatened . . . species”). Under the
Agencies’ interpretation, the Department must consider impacts to rare and
endangered species and species of “special concern,” but not “threatened” species.
Such an interpretation is illogical and seems contrary to the intention of the General
Assembly to protect at risk species. Clearly, the General Assembly intended to
protect threatened species in the context of “other critical communities.”
Moreover, under the doctrine of ejusdem generis, “threatened” is a
category of species listed by public rulemaking that aligns with categories of “rare”
and “endangered” species and “critical habitats” as defined by state and federal law.
Threatened species are of “the same general nature or class” as habitats of rare and
endangered flora and fauna. However, species of special concern, which are not
endangered or threatened species, but are in proposed status or tentatively
41
undetermined, are not.23 In essence, a “species of special concern” is a resource
classification that falls below endangered or threatened species. The General
Assembly clearly intended the term “other critical communities” to be on par with
“rare” or “endangered” species. “Threatened” species fits the bill.24
As discussed more fully below, endangered and threatened species are
the result of public rulemaking and have special protection afforded under the laws
of this Commonwealth that the Department is entrusted to enforce. Such is not the
case with species of special concern. For these reasons, we conclude that species of
special concern are not within the same nature or class as endangered and threatened
species.
This interpretation is logical when one considers the purpose of Act 13
and the balance that must be struck between oil and gas and environmental interests.
Indeed, the purpose of Act 13 is to permit the optimal development of oil and gas
resources in this Commonwealth consistent with the protection of the health, safety,
natural resources, environment and property of the citizenry. 58 Pa. C.S. §3202;25
23
The General Assembly’s use of the phrase “other critical communities” leaves room for
other classifications of imperiled species of the same ilk.
24
We note that the term “other critical communities” is not limited to “threatened” species,
but is broad enough to include prospective classifications of at risk species.
25
Section 3202 of Act 13 provides:
(1) Permit optimal development of oil and gas resources of this
Commonwealth consistent with protection of the health, safety,
environment and property of Pennsylvania citizens.
(2) Protect the safety of personnel and facilities employed in coal
mining or exploration, development, storage and production of
natural gas or oil.
42
Pennsylvania Independent Petroleum Producers v. Department of Environmental
Resources, 525 A.2d 829, 832 (Pa. Cmwlth. 1987), aff’d, 550 A.2d 195 (Pa. 1988),
cert. denied, 489 U.S. 1096 (1989). In achieving this balance, our Supreme Court
emphasized that “economic development cannot take place at the expense of an
unreasonable degradation of the environment.” Robinson II, 83 A.3d at 954-55.
However, “the trust’s express directions to conserve and maintain public natural
resources do not require a freeze of the existing public natural resource stock; rather,
as with the rights affirmed by the first clause of Section 27 [(relating to the
Environmental Rights Amendment)], the duties to conserve and maintain are
tempered by legitimate development tending to improve upon the lot of
Pennsylvania’s citizenry, with the evident goal of promoting sustainable
development.” Robinson II, 83 A.3d at 958; see also Robinson II, 83 A.3d at 1015
(Eakin, J., dissenting) (“The challenge is one of balancing the competing interests of
local and individual economic prosperity, national need for energy and a desire for
independence from foreign energy, and the unavoidable environmental impact of
taking and using any resource from the ground.”). By creating obligations tied to
species of special concern, which are not at the same level of risk as threatened or
endangered species, the regulation upsets the balance between industry and the
environment strived for in Act 13.
(3) Protect the safety and property rights of persons residing in areas
where mining, exploration, development, storage or production
occurs.
(4) Protect the natural resources, environmental rights and values
secured by the Constitution of Pennsylvania.
58 Pa. C.S. §3202.
43
By defining “other critical communities” to include “species of special
concern,” Section 78a.1 of the Chapter 78a Regulations expands upon the list of
public resources identified in Section 3215(c) and does not track the statute. See
Bailey, 801 A.2d at 500. Had the General Assembly intended for “other critical
communities” to include “species of concern” as listed on the PNDI list, it could
have drafted the statute accordingly. It did not. Absent statutory authority for
“species of concern,” as identified on the PNDI, we conclude that the regulation
exceeds the scope and purpose of Act 13 and is unenforceable.
b. Documents Law
As to the Coalition’s rulemaking challenge, the Documents Law
requires agencies to promulgate regulations through formal notice and comment
procedures in order to have the force and effect of law. Sections 201 and 202 of the
Documents Law, 45 P.S. §§1201, 1202; Hillcrest Home v. Department of Public
Welfare, 553 A.2d 1037, 1040 (Pa. Cmwlth.), appeal denied, 563 A.2d 500 (Pa.
1989). “The process by which regulations are promulgated provides an important
safeguard against the unwise or improper exercise of discretionary administrative
power and includes public notice of a proposed rule, request for written comments,
consideration of such comments, and hearings as appropriate.” Commonwealth v.
Colonial Nissan, Inc., 691 A.2d 1005, 1009 (Pa. Cmwlth. 1997). Regulations that
bypass the Documents Law’s notice and comment requirements “are a nullity.”
Automotive Service Councils of Pennsylvania v. Larson, 474 A.2d 404, 405 (Pa.
Cmwlth. 1984). As our Supreme Court has summarized:
Commonwealth agencies have no inherent power to make
law or otherwise bind the public or regulated entities.
Rather, an administrative agency may do so only in the
fashion authorized by the General Assembly, which is, as
44
a general rule, by way of recourse to procedures prescribed
in the . . . Documents Law, the . . . Review Act, and the
Commonwealth Attorneys Act. When an agency acts
under the general rule and promulgates published
regulations through the formal notice, comment, and
review procedures prescribed in those enactments, its
resulting pronouncements are accorded the force of law
and are thus denominated “legislative rules.”
Northwestern Youth Services v. Department of Public Welfare, 66 A.3d 301, 310
(Pa. 2013).
Here, the requirements related to “species of special concern” identified
on a PNDI receipt violate the Documents Law because they create a binding norm
through a changing PNDI database that is not populated through notice and comment
rulemaking procedures. Threatened and endangered species are subject to formal
notice and comment and regulatory review procedures. Commonwealth Court
Preliminary Injunction Hearing, 10/25/16, Notes of Testimony (N.T.) at 153.
However, the PNDI database includes resources that have not gone through formal
notice and comment rulemaking. Id. The provisions tied to the PNDI receipt
effectively allow third parties to make changes to the regulation without meeting the
requirements of formal rulemaking. Indeed, species of special concern are placed in
the PNDI database and designated as such by the jurisdictional agencies, that is, the
agencies with “statutory authority to protect those species,” including DCNR, the
Game Commission, the Fish and Boat Commission, and the Pennsylvania field
office of the United States Fish and Wildlife Service. Id. at 153-54.
Scott Perry, the Department’s Secretary for the Office of Oil and Gas
Management, testified at the preliminary injunction hearing that the rule requiring
consideration of species, which are neither endangered nor threatened, was adopted
in 2013 pursuant to a departmental policy. See id. at 152-54, 159-60. Perry further
testified that the Department uses the PNDI database in its efforts to consider impacts
45
on protected public resources, specifically to “require a minimal consultation
process with agencies that are protecting resources that have been deemed
appropriate for additional protection.” N.T. at 158.
The insertion of obligations tied to an ever-changing list of species
creates requirements that evolve over time while evading public notice and comment
rulemaking. By utilizing the PNDI database to protect species of special concern,
the Agencies have inappropriately subverted rulemaking formalities by engaging in
policymaking through non-legislative avenues. See Northwestern Youth, 66 A.3d at
314. We, therefore, conclude that the special concern species provisions are
unlawful because they bypass the Documents Law’s notice and comment
requirements.
Having concluded that the regulatory definition of “other critical
communities” is at odds with Act 13 and violates the Documents Law, we declare
that the regulatory definition of “other critical communities” as including “species
of special concern” as listed on the PNDI database is void and unenforceable.26
D. “Common Areas of a School’s Property and a Playground”
1. Contentions
Next, the Coalition contends that the requirement in Section
78a.15(f)(1)(vi) to identify and provide information concerning “common areas of a
school’s property or a playground” in a well permit application as well as the
definition of these terms in Section 78a.1 is unlawful and unenforceable. The
Coalition claims that common areas of a school’s property and playgrounds are not
26
In light of this disposition, we will not address the Coalition’s claims that the definition
of “other critical communities” violates Article III, Section 32 of the Pennsylvania Constitution or
that the Agencies lack jurisdiction over “species of special concern.”
46
of the same kind or class of public resources contained in the statutory list because
these areas may be located on private property. Private property is not a “public
resource” of the Commonwealth. In addition, the definition of school is so broad
that virtually any institution qualifies, including career and technical centers,
community colleges, driver training schools, and theological seminaries. The
Coalition asserts that the number of qualifying resources is “unlimited, unknown and
unknowable,” rendering the regulation overly broad and unenforceable. Petitioner’s
Brief at 51.
The Coalition further contends that the term “playground” suffers from
the same flaws. Under the regulatory definition, even a playground at a McDonald’s
restaurant qualifies as a “public resource” if it includes an outdoor area provided to
the general public for recreational purposes. The definition would also include
community playgrounds, like a homeowners’ association area that is open to the
public. Both regulatory definitions include thousands of private properties owned
by private entities that are not “public resources” as contemplated by the constitution
or Act 13. Surely, this is not what the General Assembly envisioned as “public
resources” in Section 3215(c) of Act 13.
The Agencies respond that “common areas of a school’s property or
playground” are of the same class or nature as the items listed in Section 3215(c).
The inclusion of these areas is appropriate because they are used in a manner similar
to how the general public uses publicly owned parks. These areas are only
considered if the general public has access to them for recreational purposes. The
Coalition’s argument that common areas of a school’s property or playgrounds
cannot be public resources because they are privately owned property misses the
mark. Many of the public resources included in Act 13 are, in fact, located on
47
privately owned property. As for the Coalition’s argument that the number of such
resources is “unknown or unknowable” and not compiled on any known list, a list is
not necessary because these resources are visually identifiable. 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.
2. Analysis
Statutory Authority
Section 3215(c) of Act 13 identifies “public resources” as “including,
but not limited to:”
(1) publicly owned parks, forests, game lands and wildlife
areas; (2) national or State scenic rivers; (3) national
natural landmarks; (4) habitats of rare and endangered
flora and fauna and other critical communities; (5)
historical and archaeological sites listed on the Federal or
State list of historic places . . . .[27]
58 Pa. C.S. §3215(c). These public resources are of the same general class or nature
in that they are all public in nature, albeit not necessarily publicly owned. Indeed,
some items on the list, such as buildings on the historic register and habitats of rare
and endangered species, may be located on privately owned property, but they are
not purely private property. See Robinson II, 83 A.3d at 955. What makes them
“public” is the fact that these resources “implicate the public interest,” thereby
triggering protection under the Pennsylvania Constitution. See Robinson II, 83 A.3d
at 955.
27
Section 3215(c) also included “(6) sources used for public drinking supplies in
accordance with subsection (b),” which the Supreme Court held unconstitutional in Robinson II.
48
Article I, Section 27 of the Pennsylvania Constitution secures “the right
to enjoy public natural resources and to not be harmed by the effects of
environmental degradation now and in the future . . . .” Funk v. Wolf, 144 A.3d 228,
248 (Pa. Cmwlth. 2016), aff’d, 158 A.3d 642 (Pa. 2017). “The explicit terms of the
trust require the government to ‘conserve and maintain’ the corpus of the trust.”
PEDF, 161 A.3d at 932 (quoting Robinson II, 83 A.3d at 957); see Pa. Const. art. I,
§27. “The plain meaning of the terms conserve and maintain implicates a duty to
prevent and remedy the degradation, diminution, or depletion of our public natural
resources.” PEDF, 161 A.3d at 932 (quoting Robinson II, 83 A.3d at 957). “As a
fiduciary, the Commonwealth has a duty to act toward the corpus of the trust–the
public natural resources–with prudence, loyalty, and impartiality.” Id. (quoting
Robinson II, 83 A.3d at 957).
Pursuant to various statutes, the public resources listed in Act 13 are
“managed,” i.e., monitored, regulated, and/or protected, by some government entity
to ensure their conservation and maintenance for the benefit of all the people. These
public resources are also readily identifiable because they are indexed or cataloged
by government agencies and made public on the internet. For instance, DCNR
maintains a list of publicly-owned parks, forests, wildlife areas, and scenic rivers in
Pennsylvania. The Pennsylvania Game Commission maintains a list of state game
lands. Through federal and state legislation, certain segments of Commonwealth
waterways have been designated as “scenic rivers.” The National Park Service
maintains a list of national natural landmarks. The Pennsylvania Game Commission
identifies threatened, endangered and at-risk wildlife species. DCNR maintains a
list of rare, threatened and endangered plants. DCNR also maintains a list of
historical and archaeological sites listed on the Federal or State list of historic places.
49
The Department provides a Pennsylvania Conservation Explorer’s online planning
tool,28 which allows operators to identify the location of the majority of public
resources listed in Act 13. See 46 Pa. B. 6464 (2016); Commonwealth Court
Preliminary Injunction Hearing, Stipulated Hearing Exhibit No. 2 at 86-87 (“This
tool will allow operators to identify potential impacts to threatened and endangered
species . . . .”). There is also a National Register of Historic Places.
The Public Resource Regulations expand the list by creating a new class
of “public resources.” The regulation includes the places identified in the statute,
but it adds “common areas of a school’s property” and “playgrounds” to the list of
“public resources.” 25 Pa. Code §78a.15(f)(1). The regulation requires well
applicants to identify and provide information on “common areas of a school’s
property” and “playgrounds” located within 200 feet of the proposed well location
in addition to the other listed “public resources.” 25 Pa. Code §78a.15(f)(1).
Section 78a.1 defines “common areas of a school’s property” as “[a]n
area on a school’s property accessible to the general public for recreational purposes.
For the purposes of this definition, a school is a facility providing elementary,
secondary or postsecondary educational services.” 25 Pa. Code §78a.1. According
to the Department’s interpretation, the term “school” is a “facility providing
elementary, secondary, or postsecondary educational services” that has “outdoor
facilities accessible to the general public for recreational purposes.” See Petitioner’s
Brief, Appendix G at No. 15 (Department’s Response to the Coalition’s First Set of
Interrogatories). The regulation defines “playground” as “(i) An outdoor area
provided to the general public for recreational purposes. (ii) The term includes
community-operated recreational facilities.” 25 Pa. Code §78a.1.
28
The planning tool is found at: https://conservationexplorer.dcnr.pa.gov/content/Map
(last visited July 30, 2018).
50
The Coalition contends that these definitions exceed the scope of the
statute by including purely private places that do not constitute public resources and
that the regulatory additions to public resources are not of the same class or nature
as the statutory items. The Agencies assert that common areas of a school’s property
and playgrounds share many of the inherent features as publicly-owned parks and
forests, or even National or State scenic rivers, that make them public resources
worthy of the Department’s consideration in the permitting process. Respondents’
Brief at 22. According to the Agencies, common areas of a school’s property and
playgrounds are used by the general public for recreational purposes in a manner
similar to how the general public uses publicly owned parks. Id. at 24. In other
words, any area that the general public has access to for recreational purposes is a
public resource that must be identified on a well permit application. Id. As the
Agencies further explain, the definitions of “common areas of a school’s property”
and “playground” make it clear that the impact on these areas is to be considered
only when the general public has open access to them for recreational purposes. Id.
Although common areas of a school’s property and playgrounds may
share some similarities with the public resources listed in Section 3215(c), we agree
with the Coalition that they are not within the “same general class or nature as” their
statutory counterparts. With regard to schools, virtually any school would fall within
the definition of “school,” such as career and technical centers, culinary schools,
charter schools, community colleges, private-licensed school, driver-training school,
vocational schools, etc. The list is seemingly endless as any institution providing
some form of educational services would ostensibly qualify as a “school” under the
regulatory definition. As for the recreational aspect, a mere picnic table and bench
51
or basketball hoop accessible to the public would bring the school’s property within
the purview of the regulation.
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. 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.
Unlike the public resources listed in Section 3215(c) of Act 13, the
regulations’ proffered additions are not readily identifiable. The Department does
not maintain a count or list of “schools” or “playgrounds” within the
Commonwealth. The Pennsylvania Conservation Explorer’s online planning tool
does not include common areas of a school’s property or playgrounds. See
Commonwealth Court Preliminary Injunction Hearing, Stipulated Hearing Exhibit
No. 2 at 86 (“the tool may not have data to identify all the public resources listed in
Section 78a.15(f)(1), operators will need to conduct a field survey . . . to identify
public resources. This field survey will likely include identification of schools and
playgrounds 200 feet from the limit of disturbance of the well site.”). The Agencies
assert that the use of lists or databases provides reasonable and appropriate processes
to identify public resources where the resource itself would not otherwise be visually
identifiable. Respondents’ Brief at 26. According to the Agencies, a permit
applicant need only look 200 feet from its proposed limit of disturbance to see
52
whether a neighboring feature may fit the definition of a common area of a school
or a playground that is open to the public. Id.
However, not all outdoor areas used for recreational purposes bear
readily identifiable hallmarks such as jungle gyms, picnic tables, or swing sets. For
example, it is not uncommon for school parking lots to serve as playgrounds at
recess. See Felger v. Duquesne Light Co., 273 A.2d 738, 739 (Pa. 1971) (school
parking served as a playground). In addition, “open space lands used for outdoor
recreation or the enjoyment of scenic or natural beauty and open to the public for
such use” enrolled for preferential tax treatment under the Pennsylvania Farmland
and Forest Land Assessment Act of 1974, commonly known as the Clean and Green
Act (Clean and Green Act),29 would certainly qualify as a “playground” under the
Public Resource Regulations, but may not be visually identifiable as recreational
space. See Section 2 of the Clean and Green Act, 72 P.S. §5490.2 (defining
agricultural reserve and recreational activity30); see also Section 3 of the Clean and
Green Act, 72 P.S. §5490.3 (permitting enrollment of ten contiguous acres of land
devoted to “agricultural reserve”).
Upon review, 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. “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
29
Act of December 19, 1974, P.L. 973, as amended, 72 P.S. §§5490.1-5490.13.
30
Pursuant to Section 2 of the Clean and Green Act, “recreational activity” includes, but is
not limited to, hunting; fishing; swimming; access for boating; animal riding; camping; picnicking;
hiking; “agritainment” activities; operation of non-motorized vehicles; viewing or exploring a site
for aesthetic or historical benefit or for entertainment; and operation of motorized vehicles
incidental to these activities or necessary to remove a hunted animal. 72 P.S. §5490.2.
53
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. For these
reasons, we declare that the regulatory definition of public resources to the extent it
includes “common areas of a school’s property” and “playground” is void and
unenforceable.
E. “Public Resource Agencies”
1. Contentions
Finally, the Coalition challenges the provisions of Section 78a.15(f)(2)
and (g) related to “public resource agencies” and the definition of “public resource
agency” in Section 78a.1 as unlawful and unenforceable. The Coalition maintains
that, in Robinson II, the Supreme Court enjoined the Department’s authority to
consider comments of municipalities in the well permit process by declaring Section
3215(d) unconstitutional. Moreover, the Coalition claims that allowing
municipalities to comment on well locations in the permit process circumvents due
process rights of oil and gas owners. The Department cannot grant powers to
municipalities that no statute provides. To do so would allow municipalities to
condition permits beyond their authority under the Pennsylvania Municipalities
Planning Code.31
31
Act of July 31, 1968, P.L. 805, as amended, 53 P.S. §§10101-11202.
54
In addition, the Coalition asserts that the addition of “playground
owners” as “public resource agencies” is not only contrary to Pennsylvania law
defining the term “agency,” but is impractical and unworkable. An “agency” refers
to a government agency, not private entities. The inclusion of playground owners
as public resource agencies is patently unreasonable. Public resources are governed
by singular public government agencies, such as the Pennsylvania Game
Commission or the Pennsylvania Fish and Boat Commission, which can be easily
identified and notified as appropriate during the well permit process. The inclusion
of playground owners improperly adds thousands of unknown, unidentified, unlisted
private entities as public resource agencies.
The Agencies respond that, although the Supreme Court in Robinson II
declared Section 3215(d) unconstitutional, see 83 A.3d at 985, it did so because the
statutory provision provided that the Department “may” consider comments and
recommendations submitted by public resource agencies at its discretion. The
Supreme Court found that this had the effect of marginalizing local input. Section
78a.15(g) of the Chapter 78a Regulations succeeds where Section 3215(d) of Act 13
failed by providing that the Department “will” consider such comments. Therefore,
the Coalition’s reliance on Robinson II is misplaced.
The Agencies further respond that the Public Resource Regulations do
not violate due process. The Public Resource Regulations do not grant any powers
to municipalities or allow them to exercise any authority in conditioning a permit.
It merely authorizes the Department to consider their comments. The power to
condition a permit lies solely with the Department. Its decisions are appealable to
the Board.
55
As for the Coalition’s challenge to the definition, the Agencies defend
that “public resource agency” is a term of art used for purposes of the Chapter 78a
Regulations that does not conflict with any definition elsewhere in Pennsylvania law.
The Coalition incorrectly focuses on the usage of the word “agency” as defined by
the body of administrative law. The term “agency” has a specialized purpose within
this regulatory framework. The fact that playgrounds may not have one
Commonwealth agency responsible for all of them does not render the regulation
unreasonable or unworkable. Identifying and notifying the responsible public
resource agency is something that can be readily determined on a case-by-case basis.
2. Analysis
Statutory Authority
Section 78a.15(f) of the Chapter 78a Regulations provides that well
applicants must notify public resource agencies responsible for managing the public
resources of the application. From the date of notification, the public resource
agency has 30 days to provide written comments to the Department regarding its
recommendations to avoid, minimize, or otherwise mitigate probable harmful
impacts to the public resource. Section 78a.15(g)(4) of the Chapter 78a Regulations
provides that the Department “will consider . . . [t]he comments and
recommendations submitted by public resource agencies . . . .” 25 Pa. Code
§78a.15(g)(4) (emphasis added). The regulations define “public resource agency”
as the entity responsible for managing a public resource, including “municipalities
and playground owners.” 25 Pa. Code §78a.1.
Turning to the statutory authority for these regulatory provisions,
Section 3215(d) of Act 13 provides that “[t]he [D]epartment may consider the
comments submitted under section 3212.1 (relating to comments by municipalities
56
and storage operators) in making a determination on a well permit.”
58 Pa. C.S. §3215(d) (emphasis). Section 3215(d) further provides that,
“[n]otwithstanding any other law, no municipality . . . shall have a right of appeal
or other form of review from the [D]epartment’s decision.” Id.
In Robinson II, our Supreme Court32 determined that Section 3215(d)
was unconstitutional because it permitted the Department to consider, at its
discretion, comments from municipalities, but it did not obligate the Department to
do so. Robinson II, 83 A.2d at 984. The discretionary component rendered it non-
responsive to local concerns. See id. The Supreme Court opined:
Section 3215(d) marginalizes participation by residents,
business owners, and their elected representatives with
environmental and habitability concerns, whose interests
Section 3215 ostensibly protects. See 58 Pa. C.S. §3202
(Declaration of purpose of chapter). The result is that
Section 3215 fosters decisions regarding the environment
and habitability that are non-responsive to local concerns;
and, as with the uniformity requirement of Section 3304,
the effect of failing to account for local conditions causes
a disparate impact upon beneficiaries of the trust.
Moreover, insofar as the Department . . . is not required,
but is merely permitted, to account for local concerns in
its permit decisions, Section 3215(d) fails to ensure that
any disparate effects are attenuated. Again, inequitable
treatment of trust beneficiaries is irreconcilable with the
trustee duty of impartiality. See [In re Hamill’s Estate,
410 A.2d 770, 773 (Pa. 1980)]; 20 Pa. C.S. §7773
[(relating to trusts)].
32
Justice Baer concurred in the result reached by the lead justices that Section 3215(d) is
unconstitutional, thereby inuring this portion of the plurality’s opinion with precedential value.
Robinson II, 83 A.3d at 1009 (Baer, J., concurring). See Brown, 23 A.3d at 556 (“[W]e must look
to the substance of the concurrence to determine the extent to which it provides precedential value
to points of agreement.”).
57
Robinson II, 83 A.3d at 984. The Supreme Court concluded that Section 3215(d) of
Act 13 “failed to properly discharge the Commonwealth’s duties as trustee of the
public natural resources.” Id. On this basis, the Supreme Court enjoined application
and enforcement of Section 3215(d). Id. at 1000.
Although Section 78a.15(g) appears to succeed where Section 3215(d)
of Act 13 failed by providing that the Department “will” consider such comments
and recommendations, because the Supreme Court enjoined application and
enforcement of Section 3215(d), there is no statutory authority for the regulation.
The Department cannot grant powers to municipalities that no statute provides. See
Pennsylvania Association of Life Underwriters, 371 A.2d at 566 (“The power of
. . . an agency to prescribe rules and regulations under a statute is only a power to
adopt regulations to carry into effect the will of the Legislature as expressed by
statute. Administrative agencies are not empowered to make rules and regulations
which are violative of or exceed the powers given them by the statutes and the law,
but must keep within the bounds of their statutory authority in the promulgation of
general rules and orders.”). Despite their best intentions, courts may not rewrite a
statute or insert words to make it conform to constitutional requirements. See Burke
ex rel. Burke v. Independent Blue Cross, 103 A.3d 1267, 1274 (Pa. 2014); Coppolino
v. Noonan, 102 A.3d 1254, 1284 n.38 (Pa. Cmwlth. 2014), aff’d, 125 A.3d 1196 (Pa.
2015). Thus, we are constrained to conclude that Section 78a.15(g)’s requirement
that the Department will consider comments and recommendations submitted by
municipalities fails absent statutory authority. See Pennsylvania Medical Society v.
State Board of Medicine, 546 A.2d 720, 723 (Pa. Cmwlth. 1988) (regulation that
exceeded statutory authority declared void and unenforceable).
58
The Coalition argues that the inclusion of municipalities in the
definition of “public resource agency” must likewise fail under Robinson II. In this
regard, the Coalition mischaracterizes the holding in Robinson II. In Robinson II,
the Supreme Court declared Section 3215(d) unconstitutional, not because it invited
municipal comments, but because the Department was under no obligation to
consider such comments. The Supreme Court opined that municipalities have
obligations to protect the environment in their localities.33
As discussed above, the Commonwealth is the trustee of
Pennsylvania’s environmental public trust. PEDF, 161 A.3d at 931-32; see
Robinson II, 83 A.3d at 955-567. The duties and powers attendant to the trust are
not vested exclusively in any single branch of government. See PEDF, 161 A.3d at
919; Robinson II, 83 A.3d at 952, 956. “The plain intent” of Article I, Section 27 of
the Pennsylvania Constitution “is to permit the checks and balances of government
to operate in their usual fashion for the benefit of all the people in order to
accomplish the purposes of the trust. This includes local government.” Robinson
II, 83 A.3d at 956-57. “Protection of environmental values, in this respect, is a
quintessential local issue that must be tailored to local conditions.” Robinson II, 83
A.3d at 979. Local government is a Section 27 trustee. See id. Based on our reading
of PEDF and Robinson II, we conclude that the inclusion of municipalities in the
definition of a “public resource agency” is within the power bestowed under Act 13.
See Tire Jockey, 915 A.2d at 1186.
33
Although Justice Baer concurred to express his belief that portions of Act 13 violated
due process by usurping local municipalities’ duties to impose and enforce community planning,
he agreed that local participation is necessary. Robinson II, 83 A.3d at 1001 (Baer, J., concurring).
“[I]n a state as large and diverse as Pennsylvania, meaningful protection of the acknowledged
substantive due process right of an adjoining landowner to quiet enjoyment of his real property
can only be carried out at the local level.” Id. (emphasis added).
59
Moreover, the municipality in which the well is located may be readily
determined. Municipalities have identifiable points of contact for notification
purposes. Thus, the inclusion of municipalities in the definition is not unreasonable.
However, such is not the case with “playground owners.” Playground
owners are not government agencies. Ordinarily, the term “agency” commonly
refers to a government agency. See Section 101 of the Administrative Agency Law,
2 Pa. C.S. §101 (the term “agency” refers to “[a] government agency,” meaning “any
Commonwealth agency or any political subdivision or municipal or other local
authority, or any officer or agency of any such political subdivision or local
authority.”). Unlike the governmental agencies, playground owners are not
“trustees” with any duties or obligations to protect the environmental trust under
Article I, Section 27 of the Pennsylvania Constitution or Act 13. The Agencies have
no authority to elevate private entities as public agencies responsible for ensuring
the public trust.
Moreover, playground owners are not readily identifiable. For starters,
the regulatory definition bears an internal ambiguity. The actual “owner” of the
playground may not necessarily be the “entity responsible for managing” the
playground. See 25 Pa. Code §78a.1. For instance, a playground may be owned by
one entity and managed by another. Under the definition, it is unclear which would
be the “public resource agency” for notification purposes.
Under either interpretation, identifying and notifying the appropriate
contact may be impossible, if not extremely burdensome. Unlike the other public
resources listed in Section 3215(c), “playgrounds” are not governed by singular
government agencies that can be easily identified and notified during the well
permitting process. A “playground owner” may be a corporation, homeowners’
60
association, estate, trust, or private citizen. Even if the playground owner is
identified, the point of contact for such private “owners” may be unknown,
unidentified, or unlisted. Requiring a permit applicant to identify and notify
“playground owners” is unduly burdensome and unreasonable. And, considering
our problem with the regulatory definition of “common areas of a school’s property”
and “playgrounds,” as discussed above, the definition of “public resource agency”
to the extent it includes owners of such recreational areas fails by extension. For
these reasons, we conclude that the addition of “playground owners” as a public
resource agency is unlawful and unenforceable.34
V. Conclusion
In sum, we grant the Coalition’s Application in part and we deny it in
part. We grant the Application to the extent that we declare the regulatory definitions
of “other critical communities,” “common areas of a school’s property,” and
“playground” contained in 25 Pa. Code §78a.1 as void and unenforceable. We
declare the regulatory definition of “public resource agency,” contained in 25 Pa.
Code §78a.1 and as used within 25 Pa. Code §78a.15(f), (g), void and unenforceable
to the extent that it includes “playground owners.” We are also constrained to
declare Section 78a.15(g)’s requirement that the Department will consider
comments and recommendations submitted by municipalities is unconstitutional and
unenforceable based on the Supreme Court’s decision in Robinson II, in which it
declared Section 3215(d) of Act 13, 58 Pa. C.S. §3215(d) – the statutory
34
In light of our disposition of this issue, we will not address the Coalition’s due process
claims.
61
authorization for this regulatory provision – unconstitutional and enjoined its
application and enforcement. We deny the Application in all other respects.
MICHAEL H. WOJCIK, Judge
62
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Marcellus Shale Coalition, :
:
Petitioner :
:
v. : No. 573 M.D. 2016
:
Department of Environmental :
Protection of the Commonwealth of :
Pennsylvania and Environmental :
Quality Board of the Commonwealth :
of Pennsylvania, :
:
Respondents :
ORDER
AND NOW, this 23rd day of August, 2018, Petitioner’s Application for
Partial Summary Relief (Application) seeking summary relief on Count I of its
Petition for Review in the Nature of a Complaint Seeking Declaratory and Injunctive
Relief is GRANTED IN PART and DENIED IN PART. The Application is
GRANTED to the extent that:
1) The definitions of “other critical communities,” “common areas of a
school’s property,” and “playground” contained in Section 78a.1 of Title 25, Chapter
78a of the Pennsylvania Administrative Code (Chapter 78a Regulations), 25 Pa.
Code §78a.1, are hereby declared void and unenforceable;
2) The definition of “public resource agency” in Section 78a.1 of the
Chapter 78a Regulations, 25 Pa. Code §78a.1, to the extent that it includes
“playground owners,” is hereby declared void and unenforceable; and
3) Section 78a.15(g)’s requirement that the Department will consider
comments and recommendations submitted by municipalities is declared
unconstitutional and unenforceable based on the Supreme Court’s decision in
Robinson Township v. Commonwealth, 83 A.3d 901, 984, 1000 (Pa. 2013)
(Robinson II), in which it declared Section 3215(d) of Act 13 of 2012,
58 Pa. C.S. §3215(d) – the statutory authorization for this regulatory provision –
unconstitutional and enjoined its application and enforcement.
The Application is DENIED in all other respects.
__________________________________
MICHAEL H. WOJCIK, Judge
2