On July 18, 2024, in Shirley v. Pennsylvania Legislative Reference Bureau, No. 85 MAP 2022, 2024 WL 3450536 (Pa. July 18, 2024), the Pennsylvania Supreme Court reversed the denial of three nonprofit organizations’ application to intervene in the litigation challenging the Pennsylvania Department of Environmental Protection (PADEP) regulation implementing Pennsylvania’s participation in the Regional Greenhouse Gas Initiative (the RGGI Regulation).  After rejecting several arguments regarding the appealability of the order denying intervention, the Court found that the nonprofits’ interest in defending the RGGI Regulation under the Pennsylvania Constitution’s Environmental Rights Amendment (ERA) was not adequately represented by the PADEP and therefore the lower court erred in denying intervention.  Because of this ruling, the three nonprofit organizations (Citizens for Pennsylvania’s Future, Clean Air Council, and the Sierra Club) (Nonprofits) are now able to pursue an appeal of the Commonwealth Court’s final order permanently enjoining the RGGI Regulation from going into effect.  Read More »

Share | Email| Comments|  Topics: Air, Clean Air Act, Environmental Rights Amendment, Greenhouse Gas, Hazardous Air Pollutants, Intervention, Pennsylvania, Pennsylvania Department of Environmental Protection, Rulemaking, Standing

On October 22, 2020, the Pennsylvania Commonwealth Court rejected a facial constitutional challenge to two statutory enactments that directed over $110 million generated from oil and gas leases on state lands to pay for the general government operations of the Pennsylvania Department of Conservation and Natural Resources (“DCNR”), finding that the appropriations were not facially unconstitutional under Article I, Section 27 of the Pennsylvania Constitution, also called the Environmental Rights Amendment (“ERA”). Pa. Envtl. Defense Found. v. Commonwealth, No. 358 M.D. 2018 (Pa. Cmwlth.) (“PEDF IV”). Read More »

Share | Email| Comments|  Topics: Act 13, Environmental Rights Amendment, Marcellus Shale, Oil and Gas, Pennsylvania

On February 21, 2020, the Pennsylvania Commonwealth Court dismissed a claim brought by a group of municipalities alleging that a Pennsylvania Public Utility Commission (PUC) regulation governing the siting of gas meters failed to sufficiently protect historic resources under Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment (ERA). See City of Lancaster, et al. v. Pa. Pub. Util. Comm’n, No. 251 MD 2019 (Pa. Cmwlth. Feb. 21, 2020). Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Energy, Environmental Rights Amendment, Historic Resources, Natural Gas, Pennsylvania, Preemption, Public Utilities Commission, Real Estate, Residential, Utilities

On Monday, July 29, 2019, a seven-judge panel of the Pennsylvania Commonwealth Court, in Pa. Envtl. Defense Found. v. Commonwealth, No. 228 M.D. 2012 (Pa. Cmwlth. July 29, 2019) (“PEDF III”), held that two-thirds of rental payments and up-front bonuses received by the Commonwealth as proceeds from oil and gas leases on state forest and park lands must be reserved for conservation purposes under Article I, Section 27 of the Pennsylvania Constitution, also called the Environmental Rights Amendment (“ERA”). Read More »

Share | Email| Comments|  Topics: Environmental Rights Amendment, Marcellus Shale, Oil and Gas, Pennsylvania, Pipelines

On Tuesday, the Pennsylvania Supreme Court issued an order refusing to hear an appeal of the Commonwealth Court’s holding that municipalities lack the authority to regulate in the areas of environmental protection reserved to the Pennsylvania Department of Environmental Protection. Frederick v. Allegheny Twp. Zoning Hearing Bd., 196 A.3d 677 (Pa. Cmwlth. 2018).  Read More »

Share | Email| Comments|  Topics: Case Update, Environmental Rights Amendment, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Zoning

Last week, the Commonwealth Court decided that municipalities lack the authority to regulate in the areas of environmental protection reserved to the Pennsylvania Department of Environmental Protection. Frederick v. Allegheny Twp. Zoning Hearing Bd., No. 2295 C.D. 2015 (Oct. 26, 2018).  In this latest judicial decision addressing Article I, Section 27 of the Pennsylvania Constitution (the “Environmental Rights Amendment”), the Court upheld a zoning ordinance that makes oil and gas development a permitted use by right in all zoning districts, including residential and agricultural districts, subject to certain standards related to road safety; the clearing of brush and trees; emergency planning; dust, noise and lighting controls; and security measures. Read More »

Share | Email| Comments|  Topics: Environmental Rights Amendment, Pennsylvania, Pennsylvania Department of Environmental Protection, Zoning

On September 4, 2018, the U.S. Court of Appeals for the Third Circuit determined that the Third Circuit, and not the Pennsylvania Environmental Hearing Board (“EHB”), has jurisdiction to review Water Quality Certifications issued by the Pennsylvania Department of Environmental Protection (“DEP”) for interstate natural gas projects governed by the Natural Gas Act. See Del. Riverkeeper Network, et al. v. Dep’t of Envtl. Prot., No. 16-221, 2018 WL 4201626 (3d Cir. Sept. 4, 2018). The Third Circuit also held that DEP does not violate Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) by issuing a Water Quality Certification that is conditioned on obtaining substantive permits. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Water Act, Condemnation, EHB, Eminent Domain, Energy, Environmental Rights Amendment, Federal Energy Regulatory Commission, Marcellus Shale, Natural Gas Act, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

Earlier this month, the Pennsylvania Supreme Court affirmed in part and reversed in part a preliminary injunction issued by the Pennsylvania Commonwealth Court with respect to newly promulgated regulations regarding unconventional well drilling. Marcellus Shale Coal. v. Dep't of Envtl. Prot. of Commonwealth, 115 MAP 2016, 2018 WL 2452607 (June 1, 2018). In the decision, the Court rejected the argument that courts should defer to a regulatory agency when deciding a preliminary injunction with respect to the agency’s authority to issue regulations, and also shed light on how it interprets allegations of vagueness and conflict in agency regulations. The majority opinion was authored by Chief Justice Saylor and was joined in full by all the associate justices except for Justice Donohue, who authored a concurring and dissenting opinion. Justice Donohue’s opinion, perhaps most notably, voices her disagreement with the Commonwealth Court’s interpretation of Article 1, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights Amendment. Read More »

Share | Email| Comments|  Topics: Act 13, Drilling, Energy, Environmental Rights Amendment, Groundwater, Injunction, Marcellus Shale, Natural Gas, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Pipelines, Water

On June 1, 2018, the Pennsylvania Supreme Court, in a 4-3 decision, held that a municipality was required to amend its zoning ordinance before it could allow natural gas operations in a residential-agricultural zoning district. Gorsline v. Bd. of Sup. of Fairfield Twp., et al., No. 67 MAP 2016, 2018 WL 2448803 (June 1, 2018).  Specifically, the Court ruled that the Fairfield Township Board of Supervisors improperly found that the drilling and operation of a natural gas well in a Residential-Agricultural (“R-A”) district was “similar to” other uses in the R-A district.  Although the Township’s zoning ordinance did not specifically allow drilling, the zoning ordinance provided that when a use is not specifically permitted by the zoning ordinance, the Supervisors may permit the use if, among other things, it is “similar to and compatible with the other uses permitted in the zone where the subject property is located.”  The Supervisors found that Inflection Energy, LLC’s proposed gas drilling was “similar to” other uses in the R-A district.  The Commonwealth Court upheld the Supervisors’ decision, finding that the gas drilling was similar to and compatible with a “public service facility,” which is a conditional use in the R-A district, and which is defined as the “erection, construction, alteration, operation or maintenance of buildings, power plants or substations, water treatment plants or pumping stations; sewage disposal or pumping plants and other similar public service structures by a utility, whether publicly or privately owned, or by a municipal or other governmental agency, including the furnishing of electrical, gas, communication, water supply and sewage disposal services.”   Read More »

Share | Email| Comments|  Topics: Act 13, Drilling, Environmental Rights Amendment, Marcellus Shale, Pennsylvania, Residential, Zoning

On April 24, 2018, the Pennsylvania Environmental Hearing Board issued a decision denying a Petition for Supersedeas filed by Center for Coalfield Justice and Sierra Club which had sought to enjoin Consol Pennsylvania Coal Company, LLC (“Consol”) from mining under a stream called Polen Run located in Ryerson Station State Park See Center for Coalfield Justice v. DEP, EHB Docket No. 2018-028-R (Opinion issued Apr. 24, 2018) (“CCJ III”). The Board’s opinion reinforces the Board’s prior decisions applying Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) in the context of a permitting decision in light of the Pennsylvania Supreme Court’s decision in Pa. Environmental Defense Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017) (“PEDF”).  Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Citizen Suit, Clean Streams Law, Environmental Rights Amendment, Mining, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits