American Oil and Gas Reporter - October 2015 - 116

additional time for industry to adjust,
and that the rules' effective dates should
be staggered and phased in, so that the
majority of the rules do not take effect
simultaneously.

Rule 13 Lawsuits
In June, PIOGA asked the Pennsylvania
Supreme Court to enjoin the DEP from
requiring well permit applicants to comply
with certain provisions of Act 13-its
comprehensive oil and gas regulatory
package-that the court invalidated in its
December 2013 Robinson Township v.
Commonwealth decision (AOGR, August
2015, pg. 20).
The Act 13 ruling declares specific
well permitting requirements unconstitutional, PIOGA Vice President and General Counsel Kevin Moody comments.
"Court decisions apply to government
agencies the same way they apply to others, but the DEP has ignored that," he
adds.
Because PIOGA was not a party in
Robinson Township, Moody says the association first had to ask the Supreme
Court to permit PIOGA's intervention in
the case so that it might ask the court to
enforce its injunction. Moody reports the
Supreme Court has denied the August
intervention request, without explanation.
However, at the same time PIOGA had
also filed a declaratory judgment action
in the commonwealth court, which he
says asks that court to acknowledge the
Supreme Court's injunction and that the
DEP is violating it.
The DEP's preliminary objections to
the declaratory judgment action do not
address what the association is arguing,
Moody asserts. "It was almost as if the
DEP was responding to a complaint about
another matter," he describes.
The department was scheduled to file
a brief supporting its preliminary objections before Oct. 1, he confirms. PIOGA
already has filed a brief, but is allowed
to file another, once the DEP has filed its
brief in October.
Following that, the court is scheduled
to hear oral arguments on the preliminary
objections during the week of Nov. 16,
Moody says. The arguments likely will
be heard in Pittsburgh, as that is where
the court will be sitting that week.
"We fully expect the DEP's preliminary
objections to be denied," he states. "Then,
finally, after all of this, the DEP will
have to answer what we are arguing, because it hasn't yet. I definitely think we
have a very good chance of winning."
If PIOGA wins its challenge, the DEP
will have to stop requiring permit applicants to engage in the Pennsylvania
Natural Diversity Inventory (PNDI) review

process, which Moody says the department
has been running through policy documents and not regulations.
"That has been one of our primary
complaints over the years," he says.
"PNDI has been a special problem because
it requires permit applicants to jump
through a bunch of hoops set up by other
agencies that exceed the scope of the
Section 3215 public resources protections."
Moody says the department has tried
to make the PNDI process a part of the
Chapter 78 oil and gas regulations, and
expand it tremendously in the regulations.
"If operators ignore any of these nonlegal requirements, it could delay their
projects and create additional costs, and
a lot of them aren't willing to do that,"
he outlines. "There may be a good legal
reason (to ignore a policy requirement),
but not a good business reason. Many
operators will do things they don't have
to do simply to move their projects along."
Local Regulations
PIOGA continues to monitor, comment
on, and fight various unreasonable municipal, township and county ordinances
against development activities. Opponents
of natural gas development are citing
Robinson Township in challenges to local
zoning ordinances (AOGR, July 2015,
pg. 170). At the same time, Moody comments, there have been several cases of
oil and gas companies disputing municipal
ordinances' validity or necessity.
While the majority of these battles
have been uphill for the association,
Moody describes one case as a "welcome
and favorable decision."
In September, a Pennsylvania appellate
court upheld a conditional use permit issued by a Lycoming County township to
allow gas drilling to go forward in a
"residential agriculture" zoning district,
Moody says. The key ruling finds that
such operations are similar to and compatible with other uses in that zoning
district.
Moody says the case went forward
after homeowners in the Fairfield Township appealed Inflection Energy LLC's
conditional use permit. The homeowners
cited concerns about well water contamination, truck traffic, and noise and light
pollution.
"All these protests were against things
that happen during the construction phase
of the well site, or in the short-term," he
clarifies. "However, zoning laws are
meant to allow or restrict things on a
long-term basis."
Additionally, Moody explains that the
association's greatest concern regarding

116 THE AMERICAN OIL & GAS REPORTER

local regulations is the campaign by Pennsylvania-based Community Environment
Legal Defense Fund to establish additional
local ordinances, "because it is the most
egregious and illegal."
"The group calls them 'human-rights
based ordinances,'" he says. "CELDF's
ordinances are premised on a "right to
local self-government" and have two
basic features: Denying rights as 'persons'
that corporations have had for decades;
and granting 'personal' rights to natural
communities and ecosystems. And because
its members believe they speak for the
wetlands, they try to pass unconstitutional
ordinances that deny corporation's rights."
Moody gives the examples of PIOGA
members Seneca Resources' and Pennsylvania General Energy's legal challenges
to CELDF ordinances in Highland Township, Elk County, Pa. and Grant Township,
Indiana County, Pa. He says CELDF
convinced these townships to ban injection
wells, even though Seneca and PGE had
received or were in the process of receiving
permits from both federal and commonwealth regulators. The DEP revoked the
operators' injection well permits during
the litigation and will not reissue them
because of the litigation.
"The CELDF and ill-advised local
governments are disrupting operations
based on ordinances that are completely
unlawful," he stresses. "Yet, they are
enough to tie up operations for years,
and CELDF still argues that the ordinances
are not harming operators."
Moody suggests that if local governments "want to change their form of government," they should do it the way the
Pennsylvania Constitution requires. Otherwise, he says the commonwealth's local
governments would start to resemble Italian city-states between the 9th and 15th
centuries with no centralized government.
"Robinson Township said municipalities had the authority and right to zone,"
Moody adds. "But the question remains
'What can they do, and what can't they
do?'
"It is a piecemeal situation all over
the commonwealth," he concludes. "We
are seeing a whole gamut of ordinances.
Some are reasonable, and some are very
overreaching. It really hampers development because ordinances can be very
different in adjacent municipalities. One
of the dissenting opinions in Robinson
Township said denying the commonwealth's sovereign authority over local
government was opening a Pandora's
box of municipal mischief, and that is
exactly what we are seeing."
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American Oil and Gas Reporter - October 2015

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