Recently, the Pennsylvania Supreme Court affirmed a substantial portion of a preliminary injunction obtained by the Marcellus Shale Coalition (MSC) barring enforcement of 2016 regulations that impose various requirements on unconventional oil and gas drilling wells. Portions of the injunction were upheld, barring state environmental regulators from beginning to enforce the new regulations unless and until they are deemed legal in MSC’s upcoming suit in the Commonwealth Court. The Pennsylvania Department of Environmental Protection (DEP) had appealed the Commonwealth Court judge’s preliminary injunction order on four sections of the recently promulgated regulations.
“Public resources” restriction on well locations
The court concluded that there were reasonable grounds for the Commonwealth Court to grant a preliminary injunction to MSC with regard to Chapter 78a.15(f), which extends the definition of “public resources” to include “playgrounds and common areas of a school’s property” and “species of special concern.” MSC argues that the DEP is only authorized by statute to regulate publicly owned natural resources as defined by the Pennsylvania Constitution, and may not expand the definition to include publicly owned property or privately owned property open to the public. The Pennsylvania Supreme Court upheld the injunction with regard to both subsections, finding an absence of clear statutory authority for the DEP to expand the scope of existing regulations.