Judge weighs whether to put new Pa. shale drilling rules on hold

HARRISBURG — Attorneys for the Marcellus Shale Coalition argued Wednesday that several contested sections of Pennsylvania’s new shale gas drilling regulations inherently violate current law and cause immediate harm to its members as they sought to convince a Commonwealth Court judge to put a temporary hold on those rules.

The North Fayette-based industry trade group is asking Judge P. Kevin Brobson to stay key sections of expansive new state Department of Environmental Protection regulations that took effect earlier this month until the court can consider the heart of its case that portions of the shale gas rules are illegal and overreaching.

The hearing’s only witness, Scott Perry, DEP’s deputy secretary for oil and gas, testified on behalf of the department about the substance of the new rules as well as the unusual length and depth of the process that DEP followed to develop them.

The regulations took effect Oct. 8 after five years of preparations. DEP has characterized the rules as both nation-leading and conservative in that they cement many practices that companies already follow voluntarily or through policy.

Coalition attorneys did not call any witnesses during the two-day hearing and instead described how each challenged section of the regulations “has a long string of legal failings,” attorney Jean Mosites said.

Judge Brobson said he was “shocked” by that strategy, which he said left him without evidence from any members of the industry about the specific, immediate harm the regulations cause them.

“It would have been nice to have a witness,” he said.

Regardless, he subjected both the coalition’s and the state’s attorneys to rigorous questions during arguments that stretched over five hours on Wednesday after Mr. Perry testified for much of Tuesday.

The coalition is seeking to stop implementation of sections of the regulations that deal with waste handling, spill cleanup, large fluid holding ponds and well site restoration, as well as procedures for minimizing interference with public resources and abandoned wells around shale sites.

DEP attorney Nels Taber said the coalition had not met the required burden for proving that the challenged rules should be put on hold.

“There has to be more than just claims,” he said. “There has to be evidence. There is no evidence before your honor.”

Judge Brobson said he would consider each of the challenged sections individually to determine whether they should be enjoined and, if so, how broadly.

“I don’t think this is an enjoin-one-enjoin-all situation,” he said. He did not give an indication of when he will issue a ruling.