A split en banc panel of the Commonwealth Court ruled the Commonwealth of Pennsylvania, Department of Environmental Protection (“DEP”), may continue to enforce Section 3215(c) of Pennsylvania’s Oil and Gas Act (“Act 13”), under which DEP considers the impact of oil or gas well siting on public natural resources.  The decision comes three years after the Supreme Court of Pennsylvania struck down part of Section 3215 and questioned the viability of the remaining provisions of the section in Robinson Township v. Commonwealth (“Robinson Township I”). Reading the analysis in Robinson Township I to limit enjoining portions of section 3215(c) from the invalidated portions of Section 3215, the panel concluded that Section 3215(c) had only been enjoined “insofar as Section 3215(c) [is] part of the Section 3215(b) decisional process.” The panel distinguished Section 3215(c) from the decisional process under Section 3215(b), which refers to setbacks from water sources provisions and waiver process.  

On its face, the decision allows DEP to continue requiring oil and gas well permit applicants to provide information relating to the impact the oil or gas well may have on certain public natural resources enumerated under Section 3215(c).  At its heart, the decision shows that Pennsylvania’s oil and gas jurisprudence is still coping with the plurality decision handed down by the Supreme Court of Pennsylvania in Robinson Township I.

The Pennsylvania Independent Oil and Gas Association (“PIOGA”) filed a declaratory action in June of 2015 challenging DEP’s enforcement of Section 3215(c).