Energy and Environment Monitor

Commonwealth Court Overrules DEP’s Procedural Objections to Challenge of DEP’s Use of Public Resources Form and PNDI Policy in Well Permitting Process

January 13, 2016

By: Blair M. Gardner and Matthew S. Tyree

Though some believe little of consequence is ever accomplished by government in the week between Christmas and the New Year. Pennsylvania’s courts have proven that notion wrong. Both the state’s Supreme Court (see Matt Tyree’s article from last week) and Commonwealth Court published important decisions on December 29 in cases involving the state’s Department of Environmental Protection. The latter court, which has original jurisdiction in matters involving state agencies, concluded that an oil and gas trade association may bring a case to challenge DEP’s permitting policies when those policies are based on a provision of law previously determined to be unconstitutional.

DEP requires a prospective permittee for a gas well to meet criteria expressed in two forms which must accompany any well application: (1) the Public Resources Form; and (2) documented compliance with the Pennsylvania Natural Diversity Inventory (PNDI) Policy. DEP acknowledges that a section of state law, found unconstitutional in Robinson Township v. Commonwealth, 83 A.2d 901, serves as the basis for imposing the requirements set forth in the Public Resources Form and the PNDI Policy. The Pennsylvania Independent Oil and Gas Association challenged the requirement to supply the information required by the two forms in a declaratory judgment action before the Commonwealth Court. The DEP opposed the suit by preliminary objections.

The DEP raised traditional principles of administrative law—standing, ripeness and the exhaustion of administrative remedies—to block to the PIOGA action. The Commonwealth Court in a unanimous opinion blew through the agency’s arguments. Existing case law makes facial legal challenges to a regulation or administrative processes difficult to sustain. Agencies invariably want an individual to seek agency approval and require administrative review before going to court. In the present case, PIOGA avoided those hurdles. It persuaded the Commonwealth Court that the question before was purely legal which did not require the development of a factual record.

The case is Pennsylvania Independent Oil and Gas Association v. Commonwealth, No. 321 M.D. 2015 and can be found here.

For more information contact Blair M. Gardner in Jackson Kelly’s Charleston office or Matthew S. Tyree in Jackson Kelly’s Morgantown office.

This article was authored by Blair M. Gardner and Matthew S. Tyree, Jackson Kelly PLLC.