American Oil and Gas Reporter - May 2016 - 97

Moody advised members, is intervening
in the lawsuit the Pennsylvania Independent Petroleum Producers Association
filed March 24 in Commonwealth Court,
seeking to stop the Independent Regulatory
Review Commission from approving the
DEP's Chapter 78/78a rule making.
He told members on April 7 that an
argument was held earlier that day on
PIPP's requests for an expedited summary
judgment and a preliminary injunction.
"The report I got was that (the senior
judge hearing the case) seemed to understand our argument . . . and he didn't
seem to be impressed by the government's
arguments," Moody related.
(Editor's Note: Nonetheless, Moody
reported later that the following week,
the judge denied all relief. PIPP and PIOGA filed appeals with the Pennsylvania
Supreme Court on April 18, but those,
too, were denied. See story page 31.)
PIOGA also has intervened in Pennsylvania General Energy Co. v. Grant
Township in federal district court, in
which local officials blocked the company
from converting a natural gas well into
an underground injection disposal well,
despite the fact PGE had DEP and EPA
permits. But the bigger, underlying issue,
Moody said, is the community-bill-ofrights ordinance the township adopted
that ostensibly bans only underground
injection, but as a practical matter, prevents
all oil and gas activities.
Backing and encouraging Grant Township, Moody pointed out, is the Mercersburg,
Pa.-based Community Environmental Legal
Defense Fund, which he said "has convinced
municipalities all over the country (to block
oil and gas development), including in
Washington, Oregon, Colorado, Ohio, Pennsylvania, and now West Virginia."
At issue, he explained, is CELDF's
contention that people have a right to
local self-government that is superior to
state and federal law. He said CELDF
openly fomented revolution on its website,
and even had completed a "Pennsylvania
revolt" tour through seven communities.
He said the home-rule ordinances/charters
CELDF promoted contained provisions
calling for state and federal constitutional
amendments to recognize the right to
local self-government they claimed.
"Our argument is that this doesn't belong in court because the court cannot
change the constitution," Moody stated.
He noted a March 7 trial date had been
postponed until May 16, but that date,
also was in jeopardy because of various
pending motions. "These guys are litigious.
You file one thing; they will file three,"
Moody remarked, adding that Seneca Resources Corp. had a similar lawsuit pending
before the same magistrate judge for an

injection well in Highland Township.
Moody said PIOGA continued to challenge DEP's enforcement of Act 13's
Section 3215 permitting procedures, which
required consideration of the impacts of
wells on public resources and the submission of forms related to the Pennsylvania Natural Diversity Inventory, which
the association contends were enjoined
by the Pennsylvania Supreme Court's
December 2013 Robinson Township v.
Commonwealth ruling.
He said PIOGA had filed a motion
for judgment on the pleadings, noting
that the next Commonwealth Court argument dates were May 9-13 and June
6-10. (Editor's Note: A week later,
Moody reported the court had denied PIOGA's request for a May argument because DEP had said it intended to file a
motion for summary judgment by April
22, leaving insufficient time to complete
responsive filings for a May argument.)
Even though PIOGA repeatedly had
been denied the opportunity to intervene,
Moody said the association had filed amicus briefs and continued to follow closely
the Robinson Township remand to the
Supreme Court. At stake, he advised, is
the Public Utility Commission's ability
to review local ordinances for compliance
with the state's Municipalities Planning
Code-Chapter 32 of Act 13 (the reenacted 1984 Oil and Gas Act)-and the
traditional state pre-emption provision in
Act 13, Section 3302, which were not
among the Act 13 provisions challenged
in Robinson Township.
"The purpose of the PUC's review is
to deny impact taxes to municipalities that
enact unlawful ordinances," he explained.
Species Protections
Among the species-related regulations
IPAA's McDonald discussed were:
* USFWS's habitat designation rules,
which were finalized in March;
* A proposal by USFWS and the National Marine Fisheries Service to amend
the species listing petition process;
* Incidental take of more than 1,000
species of birds under the Migratory Bird
Treaty Act of 1918 (MBTA); and
* The final conservation rule for the
northern long-eared bat.
The habitat-designation rule is worrisome (see "USFWS Proposed Habitat
Rule Is Dangerous Shift In Authority,"
AOGR, January 2016, pg. 151), she indicated, because for the first time, USFWS
will be able to designate critical habitat
that is not now necessary for species survival, but that may become so based on
the agency's projections of climate change.
She said USFWS and NMFS initially
proposed to limit listing petitions to a

single species and the most recent scientific
backing, which she said could help with
the problem of many species being included in a single petition, which then
would exceed USFWS's ability to respond
timely and led to sue-and-settle agreements
with environmental groups.
(Editor's Note: On April 19, USFWS
announced a new proposal to the petition
process that significantly scaled back its
initial changes. See story page 14).
In a notice published last May, McDonald said USFWS proposed to establish
more general incidental-take authority
under the MBTA through individual and/or
industrywide general permits. Although
IPAA has expressed concern the proposal
may single out the oil and gas industry
(AOGR, September 2015, pg. 167), "I
have been doing a tremendous amount
of coalition building," McDonald advised
PIOGA. "The solar and wind industries,
which kill significantly more birds than
we do, also hate this proposal."
McDonald reiterated IPAA's praise for
the final 4(d) rule for incidental takes of
the northern long-eared bat, which was
published Jan. 14. The final rule provides
oil and gas the same exemptions afforded
the forestry and logging communities,
she said, while prohibiting tree removal
year-round within 0.25 miles of known

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American Oil and Gas Reporter - May 2016

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