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

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

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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:

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(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 <a ~ shortage . . . >.” 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