On June 1, 2018, the Pennsylvania Supreme Court upheld most of the provisions of an injunction issued by the Commonwealth Court in 2016 preliminarily enjoining the Department of Environmental Protection (the “DEP”) from enforcing various regulations relating to unconventional natural gas operations (see Marcellus Shale Coalition v. Pa. Dep’t of Envtl. Prot., Case No. 115 MAP 2016).  The disputed regulations, published in 25 Pa. Code ch. 78a, pertain to the following:

  1. operators’ pre-permitting notice obligations relating to certain public resources;
  2. operators’ obligations relative to monitoring and remediating nearby wells;
  3. upgrading or closing of existing well development impoundments;
  4. re-permitting or closing of existing centralized impoundments; and,
  5. the imposition of erosion and sediment control measure requirements pertaining to site restoration which are potentially exempted under the Clean Streams Law.

The Court agreed that the Commonwealth Court did not err in issuing its temporary preliminary injunction.  However, with respect to the contested regulations relating to existing well-development impoundments and the purported abrogation of an exemption under the Clean Streams Law, the Court concluded that the Marcellus Shale Coalition had not carried its burden to demonstrate a clear right to relief and, as such, reversed the grant of preliminary injunctive relief while the lower court continues to consider the case on its merits.