Not a Lexis Advance subscriber? Try it out for free.

Pa. Indep. Oil & Gas Ass'n v. Commonwealth

Commonwealth Court of Pennsylvania

November 18, 2015, Argued; December 29, 2015, Decided; December 29, 2015, Filed

No. 321 M.D. 2015

Opinion

 [*1120]  OPINION BY JUDGE COHN JUBELIRER

Before this Court in our original jurisdiction are the preliminary objections (POs) of the Commonwealth of Pennsylvania, Department of Environmental Protection (DEP) to the "Petition for Review in the Nature of a Complaint for Declaratory Relief" (Petition for Review) filed by the Pennsylvania Independent Oil & Gas Association (PIOGA). Pursuant to the Declaratory  [*1121]  Judgments Act,1 PIOGA seeks a declaration from this Court "that DEP is prohibited from applying and enforcing" the requirements of Section 3215(c) of the Act commonly known as the Pennsylvania Oil and Gas Act (Act 13), 58 Pa. C.S. § 3215(c),2 on well permit applicants because the Pennsylvania Supreme Court enjoined the application and enforcement of that [**2]  provision, among others, in Robinson Township v. Commonwealth, 623 Pa. 564, 83 A.3d 901 (Pa. 2013) (plurality).3 (Petition for Review ¶¶ 7-9.)

I. The Petition for Review

On June 19, 2015 PIOGA filed the Petition for Review averring, in relevant part, the following. PIOGA, a trade association, has members who "own and lease property interests that enable them to conduct oil and gas exploration, drilling, production, and related operations in Pennsylvania."4 (Petition for Review ¶¶ 1-2.) DEP is the agency responsible for applying, implementing, and enforcing Act 13. ] As part of its administrative duties, "DEP reviews well permit applications submitted by — and issues well permits to — PIOGA members." (Petition for Review ¶ 4.) DEP requires applicants for well permits to comply with the requirements set forth in a form entitled Coordination of a Well Location with Public Resources (Public Resources Form) and the Pennsylvania Natural Diversity Inventory (PNDI) Policy.5

] "DEP has expressly acknowledged that Section 3215(c) of Act 13 serves as its basis for imposing the requirements set forth in  [*1122]  the Public Resources Form and requirements in the PNDI Policy." (Petition for Review ¶ 24.) In particular, the Instructions for Completing an Application for a Permit to Drill or Alter an Oil or Gas Well (Instructions)6 specifically state that "'Section 3215(c) of [Act 13] requires [DEP] to consider the impact of proposed well[s] on various public resources when making a determination on a well permit. 58 Pa. C.S. § 3215(c).'" (Petition for Review ¶ 25 (quoting Instructions at 8).) The Instructions also indicate that, in order to obtain a well permit, "applicants must submit the Public Resources Form (if applicable) and document compliance with the PNDI Policy." (Petition for Review ¶ 25.) When an applicant does not provide the Public [**5]  Resources Form, if required, or comply with the PNDI Policy, DEP may deny the permit application as incomplete pursuant to Section 3211(e) of Act 13, 58 Pa. C.S. § 3211(e).

Read The Full CaseNot a Lexis Advance subscriber? Try it out for free.

Full case includes Shepard's, Headnotes, Legal Analytics from Lex Machina, and more.

135 A.3d 1118 *; 2015 Pa. Commw. LEXIS 592 **

Pennsylvania Independent Oil & Gas , Petitioner v. Commonwealth of Pennsylvania, Department of Environmental Protection, Respondent

Subsequent History: Publication Ordered March 10, 2016.

Motion denied by, Motion granted by, Judgment entered by Pa. Indep. Oil & Gas Ass'n v. Commonwealth, 2016 Pa. Commw. LEXIS 375 (Pa. Commw. Ct., Sept. 1, 2016)

Prior History: Pa. Indep. Oil & Gas Ass'n v. Dep't of Envtl. Prot., 2015 Pa. Commw. Unpub. LEXIS 938 (2015)

CORE TERMS

regulations, public resources, permitting process, Coal, Environmental, challenging, pre-enforcement, justiciability, declaratory judgment action, administrative remedy, declaratory judgment, Resources, enjoined, permit application, judicial review, exhaust, original jurisdiction, asserts, permits, argues, ripe, oil, declaration, facial, challenged regulation, preliminary objection, declaratory relief, allegations, enforcing, rights

Civil Procedure, Declaratory Judgments, State Declaratory Judgments, Scope of Declaratory Judgments, Energy & Utilities Law, Regulators, Public Utility Commissions, Authorities & Powers, Oil & Petroleum Products, Processing & Refining, Oil & Gas Well Classifications, Business & Corporate Compliance, Professional Associations & Corporations, Business & Corporate Law, Professional Associations & Corporations, Justiciability, Standing, Third Party Standing, Responses, Defenses, Demurrers & Objections, Defects of Form, Demurrers, Injury in Fact, Personal Stake, Case & Controversy Requirements, Actual Controversy, Administrative Proceedings, Judicial Review, Jurisdiction, Hearings & Orders, Judicial Review, Administrative Law, Reviewability, Standing, General Overview, Ripeness, Tests for Ripeness, Exhaustion of Remedies, Exhaustion of Remedies, Administrative Remedies