HARRISBURG — The state Department of Environmental Protection might still have the power to consider the impact of proposed oil and gas wells on protected spaces and species under a 1984 law, even if the state Supreme Court threw out a more recent version of DEP’s decision-making procedure in 2013.
At least some judges on the Commonwealth Court — although not a clear majority — seemed receptive to DEP’s back-up argument on Wednesday, when the appellate court considered a challenge to DEP’s permitting procedures and policies brought by an oil and gas industry trade group.
But the judges signaled that they are still wrestling with the main argument: whether the 2013 Supreme Court decision to strike down sections of the state’s updated oil and gas law also crippled DEP’s ability to consider the impact of proposed wells on features like public parks, critical species and scenic rivers.
The Wexford-based Pennsylvania Independent Oil and Gas Association argued that the Supreme Court was clear that the parts are inseparable and must all be rejected.
“They are inextricably intertwined,” PIOGA’s attorney in the case Jean Mosites said. “They fall together.”
The trade group wants the court to declare that DEP no longer has the authority to mandate that companies applying for well permits coordinate with agencies that manage public resources and prepare detailed plans to protect them.
DEP’s attorney Mary Martha Truschel described the information that companies provide in the permits as crucial for ensuring that drillers interact with the stewards of parks and protected species and don’t, for example, “build a well in the middle of Point State Park in Downtown Pittsburgh” without providing adequate warning or safeguards.
Ms. Truschel said the Supreme Court deliberately included important qualifying phrases in its decision to make clear that the public resource protection provisions of the law survive.
If the Commonwealth Court disagrees with that reading, she said, the law should revert to its prior, 1984 form, which has been the basis for DEP’s public resource considerations in well permits for more than three decades.
Judge Anne Covey said that was her understanding of how the process should work. “Aren’t we obligated to go back to the original law of 1984?” she asked Ms. Mosites at one point.
PIOGA’s attorney answered that going back to the prior version of the law would not comply with the Legislature’s intent with its 2012 revisions.
Judge P. Kevin Brobson said he is struggling with whether the Supreme Court’s rejection of DEP’s public resource considerations was clear, as the trade group argues, or contextual, as the state department asserts.
“We have to try as best as we possibly can to figure out what the Supreme Court meant,” he said.
The judges gave no indication of when they would issue a decision in the case.
Laura Legere: email@example.com.