Pennsylvania Environmental Hearing Board continues analysis of the Environmental Rights Amendment

The PIOGA Press

(by Kevin J. Garber and Jean M. Mosites)

The Pennsylvania Environmental Hearing Board has issued several adjudications and opinions regarding challenges brought under Pennsylvania’s Environmental Rights Amendment (ERA) since the Pennsylvania Supreme Court decision in Pennsylvania Environmental Defense Foundation v. Commonwealth (PEDF) last June. PEDF set aside the long-standing three-part test in Payne v. Kassab used to analyze claims brought under the ERA and replaced it with a standard based on the text of the ERA and principles of Pennsylvania trust law. The PEDF decision addressed the allocation and use of royalties generated by leasing publicly owned oil and gas interests and did not provide a definitive test to be applied in the permitting context.

The board has addressed the obligations imposed by the ERA in Friends of Lackawanna v. DEP and Keystone Sanitary Landfill, (FOL), Center for Coalfield Justice and Sierra Club v. DEP, (CCJ) and Center for Coalfield Justice and Sierra Club v. DEP. The most recent opinion, issued on May 11 in the Delaware Riverkeeper case, reflects a continuation of the analysis provided by these earlier decisions.

Delaware Riverkeeper Network v. DEP

In The Delaware Riverkeeper, et. al. v. DEP and R.E. Gas Development, LLC the board upheld well permits and renewals issued by the Department of Environmental Protection in an appeal based in part on the ERA. Two citizens groups, the Delaware Riverkeeper and the Clean Air Council, along with several residents of Middlesex Township (collectively, Delaware Riverkeeper), appealed unconventional gas well permits and subsequent renewals issued to R.E. Gas Development, LLC (Rex). Among other arguments, Delaware Riverkeeper argued that the department violated its constitutional obligations under the ERA.

The department reviewed whether the permit applications complied with Act 13 and other relevant statutes and regulations, considered objections from a group of concerned citizens, Mars Parent Group, and held a Section 3251(a) conference with Mars Parent Group and Rex. Rex agreed to take several actions to address the objections, and the department issued the permits on September 12, 2014, with special conditions to address the public concerns. After Rex applied to renew the permits in August 2015, the department became aware of potential abandoned wells near the proposed wellsite and requested additional information from Rex. Rex provided a report summarizing its investigation of abandoned wells, and the department renewed the permits.

Analysis

Writing for the board, Judge Steven Beckman reiterated the standard for analyzing ERA challenges to permit actions set out in CCJ and FOL. According to these precedents, the board must first determine whether the department considered the environmental effects of its permitting action and, second, whether the department correctly concluded that its action will not result in unreasonable degradation, diminution, depletion or deterioration of the environment. Finally, the board must determine whether the department satisfied its trustee duties of prudence, loyalty and impartiality toward the beneficiaries of the natural resources affected by the permitting decision.

The Delaware Riverkeeper argued the department’s review of Rex’s application fell short of this standard of review because the department did not properly consider the environmental effects of drilling authorized by the permits. The board disagreed and also clarified that the:

discussion in CCJ was not intended to suggest that there was some minimum requirement under Article 1, Section 27 governing the amount of review time that must be undertaken by the Department and the amount of information that must be considered by the Department. The Department’s consideration of the environmental effect of its permitting actions is, we believe, intended to be a flexible standard based on the nature of the activity and the potential impact of the activity on the environmental interests protected under Article 1, Section 27.

The board stated that “[t]he fact that the consideration did not involve a full blown risk assessment and was not as extensive as Delaware Riverkeeper believes was necessary does not, in our opinion, violate the requirements of Article 1, Section 27.”

Finally, the board addressed the department’s trustee duties under the ERA, finding the department’s pre-action analysis to be consistent with its duties of prudence and impartiality. The board stated:

Our understanding of the trustee responsibility does not require the Department to deny permits to any and all activity that will negatively impact the public natural resources and/or the people who use those resources. To hold otherwise would essentially prevent any permitting activity since it is nigh impossible to have development without some environmental impact.

The Delaware Riverkeeper also argued the department breached its duty of impartiality by “treating this wellsite as if it were no different than any other wellsite” because it failed to consider the children in proximity to the wellsite and the local air quality that was already degraded. The board found the department did not violate its duty of impartiality because it considered the interests of various beneficiaries of the public natural resources near the proposed site.

Siri Lawson v. DEP and Hydro Transport LLC

On May 17, the board dismissed an appeal of a brine spreading plan approval as moot. Lawson v. DEP, EHB Dkt. No. 2017-051 B (May 17, 2018). Siri Lawson, a township resident, appealed the department’s approval of Hydro Transport LLC’s plan to spread brine from conventional oil and gas operations for dust control and stabilization on dirt roads in Sugar Grove and Farmington townships in Warren County. Among her arguments, Lawson claimed the department violated the ERA when it failed to impose adequate operating requirements to protect the waters or the air of the Commonwealth. Both Lawson and Hydro Transport filed motions for summary judgment, including arguments related to the applicability of and obligations under the ERA.

The May 17 decision, however, dismissed the appeal as moot without addressing the legal merits of the appeal because the approval had expired at the end of 2017. The board found that there was no effective relief it could grant and that this type of approval was not capable of repetition. In its motion to dismiss, the department repudiated its authority to issue brine spreading approvals to haulers such as Hydro Trans – port. The board declined to reach or opine on the department’s authority under the Solid Waste Management Act or otherwise.

What’s next?

In Delaware Riverkeeper, the board followed the ERA analytical approach taken in CCJ and FOL, examining the record to evaluate both the department’s consideration of the effect of the permitted activity on public natural resources, as well as the actual or potential adverse effects of the permitted activity on the environment. Consistent with board decisions issued before PEDF, as well as the 2013 Pennsylvania Supreme Court decision in Robinson Township v. Commonwealth, the board’s opinion reaffirms that the ERA “should not be read as preventing all impacts to the environment nor does it call for a stagnant landscape.”

Several other ERA questions remain pending before the board.

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