American Oil and Gas Reporter - July 2018 - 16

press accounts note.
Those amendments originated in
case law dealing with EPA's position
that nonadjacent production sites
could be aggregated into a single
source for purposes of calculating
emissions. Under EPA's guidance,
emissions can be aggregated when the
sources are within the same industrial
category, located on contiguous or
adjacent properties, and under
common control by the same person
or company.
However, a 2012 ruling in Summit
Petroleum Corp. v. EPA by the U.S. Court
of Appeals for the 6th Circuit held the
agency could not aggregate emissions
from a gas sweetening plant and several
natural gas wells located within a 43square-mile area, prompting EPA to issue
a memorandum stating the agency would
comply with the ruling only within the
6th Circuit's jurisdiction of Kentucky,
Michigan, Ohio and Tennessee.
The same industry litigants won an
earlier challenge in 2014, when the D.C.
Circuit vacated the 2012 memo (AOGR,
July 2014, pg. 17).
However, in June, a second D.C.
Circuit panel sided with EPA in its
appeal, citing the agency's August 2016
amendments addressing how the agency
should "treat federal court decisions
regarding locally or regionally
applicable actions that may affect
consistent application of national
programs, policy and guidance."
The June ruling states, "It is hardly
surprising that judicial review of EPA
actions sometimes results in circuit
court rulings that are inconsistent with
other circuit court rulings applicable to
different EPA regions. The amended
regulations reflect sensible solutions to
issues emanating from intercircuit
conflicts and agency nonacquiesence.
We therefore defer to EPA's reasonable
construction of the statute and deny the
petitions for review." r

Pennsylvania High Court
Addresses Zoning,
Implementation Of Rules
HARRISBURG, PA.-The
Pennsylvania Supreme Court on June 1
issued a pair of unrelated rulings
affecting unconventional natural gas
development, one revolving around
drilling in residential and agricultural
districts and the other related to
requirements that had been suspended
by a lower court in an ongoing appeal of
the state's unconventional oil and gas
16 THE AMERICAN OIL & GAS REPORTER

regulations.
The Pennsylvania Independent Oil &
Gas Association reports that in Gorsline
v. Board of Supervisors of Fairfield
Township, the Supreme Court sided
with residents who challenged the
Lycoming County township's decision
to allow unconventional gas drilling in a
residential/agricultural zone when its
zoning ordinance did not specifically
authorize the activity. The supervisors
contended that well development was
"similar to" other permitted uses.
However, the court found that
because the ordinance did not expressly
authorize a gas well as a use in any of
the township's zoning districts, "such a
use cannot enjoy any presumption of
being 'similar to' uses that are
permitted in those districts," wrote
Justice Christine L. Donohue on behalf
of the 4-3 majority. She went on to
stipulate that drilling is not
automatically prohibited in a residential
district, but that the municipality must
amend its zoning to permit the activity,
PIOGA relates.
An analysis by Babst Calland
attorney Blaine A. Lucas in PIOGA's
June newsletter emphasizes, "The
Supreme Court did not give anti-shale
activists the bright-line rule they were
hoping for in Gorsline, and, to the
contrary, criticized the absolutist
position advocated by those who read
Robinson Township as mandating that
oil and gas development be restricted to
industrial zoning districts."
In the second case, Marcellus Shale
Coalition v. Department of
Environmental Protection, the Supreme
Court took up DEP's appeal of five
sections of the agency's Chapter 78a
unconventional oil and gas regulations
that were enjoined from enforcement by
the Commonwealth Court in November
2016 as part of MSC's ongoing
challenge to portions of the rules
(AOGR, Dec. 2016, pg. 16). The high
court upheld the injunction for three of
the sections and granted the DEP relief
for two others, as the Commonwealth
Court continues to consider MSC's case
on the merits, PIOGA explains.
In a notification to its members, the
association said the Supreme Court
affirmed the preliminary injunction for
the Chapter 78a sections dealing with
pre-permit notifications for schools,
playgrounds and species of special
concern; monitoring and remediation
obligations in the Area of Review
requirements; and certain requirements
that apply to both well development and
centralized impoundments.
The court also reversed the portions

of the injunction that applied to
freshwater impoundments and well site
restoration. "With this reversal,
companies should immediately review
the obligations in Sections 78a.59b(b)
and 78a.65(d), including registration of
freshwater impoundments and
certification that such impoundments
comply with requirements for liners,
fencing and storing mine influenced
water," PIOGA advises. "Companies
should also review site restoration
obligations under Section 78a.65, which
is generally implemented through the
ESCGP-2 permit." r

South Dakota High Court
Dismisses An Appeal By
Keystone XL Opponents
PIERRE, S.D.-TransCanada
Corporation's Keystone XL Pipeline
won a legal victory when the South
Dakota Supreme Court dismissed an
appeal from pipeline opponents, ruling
that a lower state court lacked
jurisdiction to hear their appeal of an
earlier court decision.
The Cheyenne River Sioux Tribe,
Yankton Sioux Tribe and Dakota Rural
Action were appealing a 2017 ruling
from the Circuit Court of the Sixth
Judicial Circuit that upheld regulatory
approval of the project. In its June 13
decision, the Supreme Court said the
lower court did not have jurisdiction to
rule on the Public Utilities
Commission's decision.
According to court documents, 314
miles of the Keystone XL's tar-sands
crude oil pipeline runs through South
Dakota. The 36-inch diameter pipeline,
running from Alberta, Canada, to delivery
points in Oklahoma and Texas, can carry
as much as 900,000 barrels a day.
TransCanada secured a construction
permit for the South Dakota portion of
the pipeline in 2010. One of the
permit's requirements was beginning
work in the state within four years.
After the Obama administration denied
permission to build across the
international border, TransCanada asked
the commission to recertify the permit
to extend that time limitation, the court
record shows.
The PUC held public hearings
beginning in July 2015 on the
recertification request, and the
following January accepted the
certification, the Supreme Court
decision notes. While the three plaintiffs
were asking a circuit court to overturn
the commission's decision, the Trump
American Oil and Gas Reporter - July 2018

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