American Oil and Gas Reporter - November 2018 - 94

the environment, and
 Whether DEP had properly carried
out its trustee duties of prudence, loyalty
and impartiality to conserve and maintain
the environment by prohibiting degradation, diminution and depletion.
Significantly, HEB recently stated,
"Our understanding of the trustee responsibility does not require (DEP) to
deny permits to any and all activity that
will negatively impact the public natural
resources and/or the people who use those
resources," and that "[t]o hold otherwise
would essentially prevent any permitting
activity since it is nigh impossible to
have development without some environmental impact."
EHB has upheld various types of permits under this standard, in some cases,
collapsing the analysis under the second
part of the test based on the facts and
record reviewed under the first part of
the test.
Land Use Decisions
The parameters of local government
regulation of the oil and gas industry
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. The Robinson Township
Court invalidated two sections of Pennsylvania's updated Oil and Gas Act (Act
13) that limited the authority of local
governments to regulate oil and gas op-

JEAN M.
MOSITES

Jean M. Mosites is a shareholder in
Babst Calland's environmental, energy
and natural resources group, as well as
its public sector group, at the firm's
Pittsburgh office. Her practice includes
client counseling on environmental
compliance in the energy sector, resolving liabilities under federal and state
remediation programs, as well as administrative appeals and environmental
litigation in state and federal courts.
Mosites holds a B.A. in political science/economics and an M.A. in political science/international studies from
the University of Pittsburgh, and a J.D.
from Duquesne University.
94 THE AMERICAN OIL & GAS REPORTER

erations. A precursor to the Court's consideration of PEDF v. Commonwealth,
the three-justice plurality in Robinson
Township based its decision on a reinvigorated interpretation and application
of ERA.
The Supreme Court again considered
the implications of Robinson Township
in Gorsline v. Board of Supervisors of
Fairfield Township. The Commonwealth
Court had upheld a township's conditional-use approval of an oil and gas
well in a residential agriculture (RA)
district pursuant to a zoning ordinance
"savings" or "catch-all" provision. The
Commonwealth Court found that the
proposed well was similar to and compatible with other uses permitted in that
district and rejected Robinson Township/ERA-based arguments to the contrary.
Although there was no appeal by right,
the Supreme Court agreed to take the
case.
On June 1, the Supreme Court published its 4-3 decision. The majority reversed the Commonwealth Court's decision but it did so in a narrow holding,
finding that Inflection Energy LLC did
not present enough evidence establishing
that its proposed unconventional natural
gas well pad was "similar to" other uses
allowed in the township's RA district.
The majority declined to address the
constitutional question, i.e. objectors'
claimed violations of substantive due
process rights and the ERA based on

KEITH J.
COYLE

Keith J. Coyle is a member of Babst
Calland's Washington office and a shareholder in the energy and natural resources, environmental and transportation
safety groups and pipeline and hazardous
material safety practice. Coyle advises
clients throughout the United States on energy matters, but his practice focuses primarily on the regulation of pipelines and
liquefied natural gas facilities and the
transportation of hazardous materials. He
holds a B.A. in international relations
from Lehigh University, a J.D. from Temple University, and an LL.M. in law and
government from American University.

their interpretation of Robinson Township. The majority opinion did, however,
conclude with strong language recognizing that zoning decisions are inherently local matters, and a local municipality is empowered to "permit oil and
gas development in any or all of its
zoning districts."
In addition, the majority cautioned
that its narrow holding "should not be
misconstrued as an indication that oil
and gas development is never permitted
in RA districts, or that it is fundamentally
incompatible with residential or agricultural uses." The three dissenting justices
would have addressed the Robinson Township constitutional question and faulted
the objectors for reading Robinson Township too broadly when they claimed that
natural gas development is inherently incompatible with residential uses, and its
impacts never can be mitigated through
imposition of conditions.
Thus, language in both the Gorsline
majority and dissenting opinions largely
rejected the post-Robinson Township
assertion that natural gas wells must be
relegated to industrial zoning districts
and are fundamentally incompatible
with residential or agricultural zoning
districts.
Local Ordinances Challenged
In Pennsylvania, Pennsylvania General
Energy LLC and Seneca Resources Corporation challenged underground injection

KRISTA-ANN M.
STALEY

Krista-Ann Staley is a shareholder
in Babst Calland's public sector services and energy and natural resources
groups. Staley's practice focuses on
municipal law, with an emphasis on
land use and land development issues.
She also counsels and represents private landowners and businesses in matters relating to governmental entities,
such as analyzing municipal ordinances and obtaining various land use
approvals. Staley holds a bachelor's in
urban planning and development from
Ball State University, and a J.D. from
the University of Pittsburgh, with a certificate in advanced study of environmental law, science and policy.

American Oil and Gas Reporter - November 2018

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