American Oil and Gas Reporter - March 2018 - 46

SpecialReport: Industry Infrastructure
climate change should be incorporated
into environmental reviews for energy
sector projects.
Environmental Regulations
The Marcellus Shale Coalition's challenge to Pennsylvania DEP's unconventional gas environmental regulations of
2016 (Chapter 78a) is still pending before
the Pennsylvania Commonwealth Court
(MSC v. DEP and Environmental Quality
Board, Dkt. No. 573 M.D. 2016). A hearing may be held this summer.
In Ohio, the Ohio Division of Oil &
Gas Resources plans to develop draft
rules on well spacing, and on oil and gas
waste management facilities. The agency
is evaluating whether to revise existing
well spacing minimum acreage requirements for conventional wells to establish
new setback distances for a new horizontal
shale well from drilling unit boundaries
and other horizontal wells.
For oil and gas waste management facilities, the agency is considering new
rules for permitting and operating a facility
that stores, recycles, treats and/or processes
brine and other waste associated with oil
and gas exploration and production operations, but that is not part of otherwise
permitted well operations. These facilities
currently are granted temporary authorization by an administrative order.
Local Government Regulation
The parameters of local government
regulation of the oil and gas industry in
Pennsylvania continue to be refined and
left uncertain by the ongoing judicial
fallout from the Pennsylvania Supreme
Court's 2013 decision in Robinson Township v. Commonwealth, 83 A.3d 901
(2013). In Robinson Township, the Pennsylvania Supreme Court invalidated two
sections of Pennsylvania's updated Oil
& Gas Act (Act 13) that limited the authority of local governments to regulate
oil and gas operations. The three-justice
plurality decision was based on a reinvigorated interpretation and application
of the ERA.
In September 2016, the Pennsylvania
Supreme Court ruled that the portions of
Act 13 giving the Public Utility Commission and the commonwealth court jurisdiction to review local zoning ordinances, withhold impact fee payments
and award attorneys' fees against municipalities were not "severable" from the
previously invalidated sections of Act 13,
and therefore also were invalid. The im46 THE AMERICAN OIL & GAS REPORTER

plications of Robinson Township in the
municipal regulatory arena currently are
being considered by the Pennsylvania
Supreme Court. In Gorsline v. Board of
Supervisors of Fairfield Township, 123
A.3d 1142 (Pa. Commw. Ct. 2015), petition for allowance of appeal granted,
139 A.3d 178 (Pa. 2016), the commonwealth court upheld a township's conditional use approval for an oil and gas
well in a residential agriculture (RA) district pursuant to a zoning ordinance's
"savings" or "catchall" provision. In doing
so, the court found that the proposed
well was similar to and compatible with
other uses permitted in that district, and
it rejected Robinson Township-ERA based
arguments to the contrary. Although there
is no appeal by right, the Supreme Court
agreed to take the case. The court heard
oral argument in March and a decision is
still pending.
While the issues on appeal in Gorsline
include case-specific questions concerning
the ordinance language and applicable
facts, of significance is the Supreme
Court's consideration of whether permitting a shale gas well in an RA district
conflicts with Robinson Township. In particular, the question posed is whether
natural gas development is an industrial
activity that only can be permitted in industrial zoning districts, and therefore, is
per se incompatible with agricultural and
residential activities.
Although the court's decision in Robinson Township was viewed as a victory
for those advocating local control of oil
and gas operations, industry opponents
quickly sought to use that plurality decision
as a sword to attack the validity of local
ordinances permitting industry activity.
They argue that these local ordinances
violate the ERA because they do not regulate oil and gas development stringently
enough, that ordinances cannot permit
oil and gas uses in agricultural or residential districts, and that municipalities
must engage in extensive environmental
assessments when enacting regulations.
These Robinson Township arguments
are being supplemented with references
to the Supreme Court's previously discussed 2017 decision in PEDF. To date,
zoning hearing boards in a number of
municipalities consistently have rejected
these types of challenges, as have several
county common pleas courts. In June
2017, the commonwealth court, in an
unpublished opinion, affirmed the validity
of one of the challenged ordinances in

Delaware Riverkeeper v. Middlesex Township Zoning Hearing Board, 172 A.3d
142 (Pa. Commw. Ct. 2017). The Supreme
Court ordered that its consideration of
the objectors' appeal be placed on hold
pending its decision in Gorsline.
A case raising similar issues was
argued before a three-judge panel of the
commonwealth court in November 2016.
After more than a year of inactivity, the
commonwealth court in January 2018
ordered briefing and oral argument before
the full court, directing the parties to address the implication of the PEDF decision
(Frederick v. Allegheny Twp. Zoning H'rg
Bd., No. 2295 CD 2015 [Pa. Commw.
Ct. Jan. 3, 2018]).
Pipeline Safety Regulations
Having recently filled the two most
important political appointments at the
U.S. Department of Transportation's
Pipeline & Hazardous Materials Safety
Administration, the Trump administration
appears ready to take further action on
two rule-making proceedings that could
reshape the nation's federal safety standards for hazardous liquid and natural
gas pipelines.
On Oct. 30, Howard R. Elliott officially
was sworn in as PHMSA's administrator.
Elliot brings more than four decades of
experience in the freight rail industry to
his new position, including expertise in
the areas of hazardous material safety
and security.
A few months earlier, on Aug. 7, Drue
Pearce became PHMSA's deputy administrator. Pearce previously served as an
official in the George W. Bush administration and as a state legislator in Alaska.
As the core of the agency's new leadership
team, Elliot and Pearce will play an important part in deciding the fate of a significant gas pipeline safety rule-making
proceeding that PHMSA initiated during
the previous administration.
In April 2016, PHMSA issued a notice
of proposed rulemaking (NPRM) proposing extensive changes to the safety
standards and reporting requirements for
gas transmission and gathering lines. To
address certain mandates in the 2011
reauthorization of the Pipeline Safety Act
and related National Transportation Safety
Board safety recommendations, PHMSA
proposed new requirements, including:
* Verifying the maximum allowable
operating pressure and documenting the
materials in onshore steel gas transmission
lines;

American Oil and Gas Reporter - March 2018

Table of Contents for the Digital Edition of American Oil and Gas Reporter - March 2018