Court limits public resources for drilling permits

No impact scrutiny for schools, playgrounds

Harrisburg Bureau

Pennsylvania’s Commonwealth Court on Thursday broadly upheld the state Department of Environmental Protection’s process for considering a shale gas well’s impact on public natural resources before granting a drilling permit, but it limited the agency’s definition of what counts as a public resource.

The five-judge panel struck down the agency’s attempt to expand its scrutiny to a well’s impact on playgrounds and common areas at schools, finding DEP’s definition of those features “vague, overly broad, and unpredictable.”

It also rejected the agency’s definition of “critical” plant and animal communities because DEP’s classification included species that may not warrant “heightened conservation measures.”

The Pennsylvania Constitution and the state’s drilling law require the department to consider an oil and gas well’s impact on protected natural resources, like public parks, scenic rivers and natural landmarks. In DEP’s 2016 revision of its shale gas regulations, it created a process for drilling companies to disclose possible impacts to those public resources and for resource management agencies to weigh in on how to minimize disturbances.

The Marcellus Shale Coalition, a Robinson-based trade group that represents the state’s major shale gas operators, sued to block some provisions of the new regulations — including the public resource rules — in October 2016.

A judge put a stay on the sections related to playgrounds, common areas of a school’s property and so-called “species of special concern” the next month.

On Thursday, the Commonwealth Court upheld DEP’s public resource review process as a way for the agency to gather information it needs to decide whether to add protective conditions to drilling permits.

But the court said DEP went too far in trying to expand that oversight to habitats of species that may fall short of being “imperiled” and to park-like gathering places that are difficult to define.

“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,” the court said in an opinion by Judge Michael Wojcik.

The court also rejected a requirement that DEP consider comments and recommendations submitted by municipalities acting as public resource agencies because a 2013 Supreme Court decision struck down the foundation of that rule.

The Commonwealth Court is continuing to consider the other aspects of the Marcellus Shale Coalition’s case. The court has tentatively scheduled oral arguments for October.