                            [J-73-2017] [MO: Saylor, C.J.]
                    IN THE SUPREME COURT OF PENNSYLVANIA
                                  MIDDLE DISTRICT


    THE MARCELLUS SHALE COALITION,            :   No. 115 MAP 2016
                                              :
                      Appellee                :   Appeal from the Order of the
                                              :   Commonwealth Court at No. 573 MD
                                              :   2016 dated November 8, 2016
               v.                             :
                                              :   ARGUED: October 18, 2017
                                              :
    DEPARTMENT OF ENVIRONMENTAL               :
    PROTECTION OF THE                         :
    COMMONWEALTH OF PENNSYLVANIA              :
    AND ENVIRONMENTAL QUALITY                 :
    BOARD OF THE COMMONWEALTH OF              :
    PENNSYLVANIA,                             :
                                              :
                      Appellants              :


                      CONCURRING AND DISSENTING OPINION

JUSTICE DONOHUE                                                 DECIDED: June 1, 2018

        I join in the Majority’s decision to reverse the Commonwealth Court’s decision to

grant a preliminary injunction upon the request of the Marcellus Shale Coalition (“MSC”)

with respect to well-development impoundments, 25 Pa. Code § 78a.59b(b), and site

restoration, 25 Pa. Code § 78a.65(a). I dissent from the Majority’s decision to affirm the

Commonwealth Court’s entry of a preliminary injunction against the Pennsylvania

Department of Environmental Protection (“DEP”) and the Pennsylvania Environmental

Quality Board (the “EQB”) (collectively, the “Agencies”), with respect to the enforcement

of newly enacted regulations1 governing public resources, 25 Pa. Code §§ 78a.1,

1  These regulations were promulgated after extensive rulemaking proceedings that
included over 28,000 public comments, testimony from 429 witnesses, and twelve public
hearings.
78a.15(f)-(g), areas of review, 25 Pa. Code § 78a.52(a), 78a.73(c)-(d), and centralized

impoundments, 25 Pa. Code § 78a.59c. For these latter regulations, MSC did not offer

any substantial evidence in the proceedings before the Commonwealth Court2 and did

not, in my view, meet its burden of proof to establish the six requirements for the issuance

of a preliminary injunction.

       To obtain a preliminary injunction, the requesting party must show:

              (1) the injunction is necessary to prevent immediate and
              irreparable harm that cannot be compensated adequately by
              damages;

              (2) greater injury would result from refusing the injunction
              than from granting it, and, concomitantly, the issuance of an
              injunction will not substantially harm other interested parties
              in the proceedings;

              (3) the preliminary injunction will properly restore the parties
              to their status as it existed immediately prior to the alleged
              wrongful conduct;

              (4) the party seeking injunctive relief has a clear right to relief
              and is likely to prevail on the merits;

              (5) the injunction is reasonably suited to abate the offending
              activity; and,

              (6) the preliminary injunction will not adversely affect the
              public interest.



2 At the outset of those proceedings, MSC advised the Commonwealth Court that it would
not be calling any witnesses and would instead rely upon admissions in the pleadings by
the Agencies as “undisputed facts.” N.T., 10/25/2016, at 4. MSC later admitted into
evidence a limited number of documents, consisting of the transcript of an EQB hearing,
a regulatory analysis form (the “RAF”) submitted by the Agencies to the Independent
Regulatory Review Commission, a copy of the 78a regulations, and two letters from
General Assembly’s House and Senate regulatory committees (admitted solely for the
purpose of reflecting their participation in the regulatory review process). Id. at 14-18.


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SEIU Healthcare Pennsylvania v. Commonwealth, 104 A.3d 495, 501 (Pa. 2014).

       For a preliminary injunction to issue, all of these prerequisites must be established,

and the burden of proof for all six items rests squarely with the party seeking the

preliminary injunction. Warehime v. Warehime, 860 A.2d at 41, 47 (Pa. 2004) (“The

burden is on the party who requested preliminary injunctive relief.”); County of Allegheny

v. Commonwealth, 544 A.2d 1305, 1307 (Pa. 1988); Beaver Cty. ex rel. Beaver Cty. Bd.

of Comm'rs v. David, 83 A.3d 1111, 1117 (Pa. Commw. 2014). Despite its multitudinous

burdens of proof, MSC, as the entity requesting that regulations designed and adopted to

protect Pennsylvania’s environmental resources be preliminarily enjoined from

enforcement, did not call any witnesses to testify at the evidentiary hearing.3 In contrast,

although they had no burden of proof, the Agencies called DEP Deputy Secretary Scott

Perry (“Secretary Perry”), the head of the agency’s Office of Oil and Gas Development,

who provided extensive testimony regarding the Agencies’ rulemaking efforts with respect

to the regulations at issue here.

Public Resources (Count I)
       Section 3215(c) of the 2012 Oil and Gas Act, 58 Pa.C.S. §§ 2301–3504 (the “Act”),

provides that DEP must, as part of the permitting process for an unconventional gas well,

consider the proposed well’s impacts on the following public resources.

              Impact.--On making a determination on a well permit, the department
              shall consider the impact of the proposed well on public resources,
              including, but not limited to:

              (1)    Publicly owned parks, forests, game lands and wildlife areas.

              (2)    National or State scenic rivers.

3  Contrary to the Majority’s indication, I do not criticize MSC for failing to call any
witnesses. Instead, I disagree with the Commonwealth Court’s decision to grant
preliminary injunctions with respect to certain of the section 78a regulations in instances
where MSC did not introduce sufficient evidence of record to meet its burdens of proof.


                            [J-73-2017] [MO: Saylor, C.J.] - 3
               (3)     National natural landmarks.

               (4)     Habitats of rare and endangered flora and fauna and other
                       critical communities.

               (5)     Historical and archaeological sites listed on the Federal or
                       State list of historic places.

               (6)     Sources used for public drinking supplies in accordance with
                       subsection (b).
58 Pa.C.S. § 3215(c). Sections 78a.15(f) and (g) of the regulations promulgated in

connection with section 3215(c) require prospective drillers to make certain notifications

in circumstances where drilling may impact a public resource, thus providing DEP with a

methodology for considering these impacts so that DEP will know whether to grant the

permit or otherwise add permit conditions to avoid potentially negative impacts from

fracking activities.

       Relevant to the preliminary injunction granted as to Count I, based upon public

comments received during the rulemaking process, EQB added a requirement that DEP

consider impacts when an unconventional well is proposed to be drilled within 200 feet of

“common areas of a school’s property or playgrounds.” 25 Pa. Code § 78a.15(f)(1)(vi).

In section 78a.1, “common areas of a school’s property” is now defined as an “area on

school property accessible to the general public for recreational purposes,” and

“playground” is defined as an “outdoor area provided to the general public for recreational

purposes … includ[ing] community operated recreational facilities.” 25 Pa. Code § 78a.1.

In connection with the existing regulation in section 78a.15(f)(1)(iv), which requires

consideration of impacts of drilling on “other critical communities” (per section 3215(c)(4)),

section 78a.1 added a definition of “other critical communities” (a previously undefined

term) to mean species of special concern identified through the Pennsylvania Natural

Diversity Inventory (“PNDI”). 25 Pa. Code § 78a.1.



                              [J-73-2017] [MO: Saylor, C.J.] - 4
         The absence of a substantial legal question with respect to “common
         areas of a school’s property or playgrounds”
         In my view, these new regulations and related definitions do not establish the sort

of substantial legal question required for a preliminary injunction.4        Application of a

straightforward rule of statutory construction demonstrates that the Agencies’

interpretation of section 3215(c) – to include consideration of “common areas of a school’s

property or playgrounds” – is neither unreasonable nor in any respect erroneous. As

quoted above, in setting forth a list of the types of public resources that DEP should

consider in the permitting process, section 3215(c) uses the phrase “including, but not

limited to.” This phrase is widely recognized as a signal to apply the long accepted

statutory construction doctrine of ejusdem generis (“of the same kind or class”). Dep't of

Envtl. Prot. v. Cumberland Coal Res., LP, 102 A.3d 962, 976 (Pa. 2014). The doctrine of

ejusdem generis provides that when general expressions (such as “including, but not

limited to”) precede a specific list of specific items, the general words are to be interpreted

as words of enlargement and not limitation -- such that the list is to be construed to include

not only the specifically enumerated items but also other items of the same general nature

or class. Id; see also Com. ex rel. MacElree v. Legree, 609 A.2d 155, 157 (Pa. 1992);

Pa. Human Rel. Comm. v. Alto–Reste Park Cemetery Ass'n, 306 A.2d 881, 885 (Pa.

1973).

         As such, in determining the ambit of section 3215(c), whether the Agencies

improperly expanded the list of items to be considered pursuant to section 78a.15(f) by

including “common areas of a school’s property or playgrounds” depends upon whether

this item is of the same kind or class as those specifically listed. In this regard, the


4 I agree with the Majority’s determination that only a substantial legal question needs to
be raised to establish the fourth requirement for a preliminary injunction (clear right to
relief). Majority Op. at 19 (citing SEIU, 104 A.3d at 506; Fischer v. Dept. of Public Welfare,
439 A.2d 1172, 1174 (Pa. 1982)).


                              [J-73-2017] [MO: Saylor, C.J.] - 5
Agencies have offered an entirely reasonable response, namely that “common areas of

a school’s property or playgrounds” is of the same kind or class as publicly owned parks.

Agencies’ Brief at 35. The resources share common characteristics, as the general public

utilizes them in precisely the same way (for recreation). As the Agencies further explain,

the definitions of “common areas of a school’s property” and “playground” make clear that

the impact on these areas is to be considered only when the general public has open

access to them for recreational purposes. Id.

       Rather than apply a venerable rule of statutory construction to resolve this issue,

the Commonwealth Court questioned whether consideration of “public resources” in

section 3215(c) is limited to publicly-owned resources, rather than privately-owned

resources.   Commonwealth Court Opinion, 11/8/2016, at 16-18.            In so doing, the

Commonwealth Court speculated that section 3215(c) could be over-broadly construed

to permit the inclusion of various other types of privately-owned resources open to the

public, including shopping centers, movie theaters, sports stadiums and amusement

parks. Id. at 17 n.11.5


5   In a footnote, the Commonwealth Court suggested that it is “possible” that when
enacting section 3215(c), the General Assembly intended to protect only those "public
natural resources" expressly protected under Article I, Section 27 of the Pennsylvania
Constitution. Commonwealth Court Opinion, 11/8/2016, 17 n.10. By highlighting the
word “public” in Article I, Section 27’s reference to “public natural resources,” the
Commonwealth Court implied that this provision of our Constitution includes a distinction
of the type MSC insists exists in the present statutory analysis, namely between publicly-
owned and privately-owned real property.
The Commonwealth Court’s interpretation of Article I, Section 27 of our Constitution as
limiting the obligation of the Commonwealth to protect only natural resources located on
lands owned by governmental entities is both undeveloped and unsupported by any
analysis or citation to authority. The constitutional text emphasizes that “Pennsylvania’s
public natural resources are the common property of all the people, including
generations to come.” Pa. Const. art I, § 27 (emphasis added). Without explanation, the
Commonwealth Court equated “public natural resources” with real property owned by
governmental entities. I note that the natural resource at issue here is not real property,



                            [J-73-2017] [MO: Saylor, C.J.] - 6
       For several reasons, I do not think that the distinction between publicly-owned and

privately-owned resources has any application in the present context and does not

support the finding that a substantial legal question exists. First, the Agencies did not

include shopping centers, movie theaters, etc. in section 78a.15(f), and thus the issue of

whether these types of entities could properly be included in regulations promulgated

pursuant to section 3215(c) is simply not before the Court. Second, no language in

section 3215(c) suggests that public ownership of the resources at issue is a limiting

factor in the DEP’s consideration of the impacts on those resources that may result from

unconventional well drilling.6 To the contrary, of the six general types of public resources

listed in section 3215(c), only “publicly owned parks” specifically refers to ownership,7 and

as indicated above, “publicly owned parks” appears immediately after the “including, but

not limited to” words of enlargement. Whether publicly owned or privately owned but

open to the public, the general public uses recreational areas and playgrounds in

precisely the same way, and neither the Commonwealth Court nor MSC has provided



either publicly or privately owned, but rather environmentally healthy open space for
recreation with access to all members of the public.
In any event, because the object of interpretation here is a statute and not Article I,
Section 27 of our Constitution, and because neither this Court nor the Commonwealth
Court had the benefit of detailed advocacy or constitutional analysis by the parties, further
discussion of this issue is unnecessary.
6 Section 3202 of the Oil and Gas Act sets forth a declaration of the purpose of its Chapter
32 (“Development”), in which section 3215(c) is located. This purpose includes the
“optimal development of oil and gas resources of this Commonwealth consistent with
protection of the health, safety, environment and property of Pennsylvania citizens.”
58 Pa.C.S. § 3202(1) (emphasis added).
7 The Agencies further observe that many of the public resources listed in section 3215(c)
are located on privately-owned property, including national or state scenic rivers, places
identified on federal or state lists of historic places, sources used for public drinking
supplies, and habitats of rare and endangered flora and fauna. Agencies’ Brief at 35-36.



                            [J-73-2017] [MO: Saylor, C.J.] - 7
any compelling argument as to why impacts on these resources should not be considered

in equal measure before the DEP issues a permit to allow fracking activities in these areas

(i.e., within 200 feet of recreational areas and playgrounds).8

       The absence of a substantial legal question with respect to “other
       critical communities”
       Section 3215(c)(4) requires the DEP to consider impacts on “[h]abitats of rare and

endangered flora and fauna and other critical communities” before issuing permits for

unconventional well-drilling. Section 78a.1 now defines “other critical communities” to

include “species of special concern identified on the PNDI index.” 25 Pa. Code § 78a.1.

The PNDI (“Pennsylvania Natural Diversity Inventory”) index is a database that gathers

Pennsylvania’s ecological information, including species of plants and animals that have

been classified as “species of special concern” by the state agencies with the statutory

authority and obligation to protect them – including the Department of Conservation and

Natural Resources, the Game Commission, the Fish and Boat Commission, and the

Pennsylvania office of the Fish and Wildlife Service.

       In its petition for preliminary injunctive relief, MSC alleged that the PNDI index is

erratic, as its contents are “ever changing.” Petition for Review Seeking Declaratory and

Injunctive Relief, 10/13/2016, ¶ 44g. In its brief filed with this Court, MSC further contends

that while the PNDI index has previously been used to identify threatened or endangered

species, its use to identify species of special concern is new. MSC’s Brief at 23. In the



8  In his concurring opinion in Robinson Twp. v. Commonwealth, 83 A.3d 901 (Pa. 2013),
Justice Baer offered an apt description of the “fracking” activities involved in the drilling of
unconventional gas wells: “these industrial-like operations include blasting of rock and
other material, noise from the running of diesel engines, sometimes nonstop for days,
traffic from construction vehicles, tankers, and other heavy-duty machinery, the storage
of hazardous materials, constant bright lighting at night, and the potential for life-and
property-threatening explosions and gas well blowouts.” Id. at 1005 (Baer, J.,
concurring).


                             [J-73-2017] [MO: Saylor, C.J.] - 8
proceedings before the Commonwealth Court, however, MSC offered no evidence to

support these contentions. The Agencies, conversely, offered the testimony of Secretary

Perry, who testified that the use of the PNDI database has been a long-standing practice

of the DEP in its efforts to consider impacts on protected public resources, specifically to

“require a minimal consultation process with agencies that are protecting resources that

have been deemed appropriate for additional protection.”            N.T. 10/25/2016 at 158.

According to Secretary Perry, the new definition did not impose any new requirements on

drilling applicants, but merely provided “clarity and certainty that industry needs to operate

efficiently.” Id. at 161.

       The Commonwealth Court found a substantial legal question based upon its

conclusion that “species of special concern” is not a resource classification specifically

referenced in section 3215(c)(4).       Commonwealth Court Opinion, 11/8/2016, at 18.

According to the Commonwealth Court, section 3215(c) references only threatened and

endangered species. Id. at 17-18. As such, the Commonwealth Court reasoned that

“species of special concern” have no protection “under the laws of this Commonwealth

that DEP is entrusted to enforce,” and the definition of “other critical communities”

appears to be “untethered to [the Agencies’] regulatory authority.” Id. at 18.

       No substantial question exists here. The Commonwealth Court unreasonably, and

in further violation of basic rules of statutory interpretation, equated the reference to “other

critical communities” in section 3215(c)(4) with threatened and endangered species.

Such a narrow interpretation of section 3215(4) treats the phrase “other critical

communities” as mere surplusage, which is not permissible under basic statutory

construction principles. See, e.g., Reginelli v. Boggs, 181 A.3d 293, 305 (Pa. 2018) (citing

Burke by Burke v. Independence Blue Cross, 171 A.3d 252, 260 (Pa. 2017)); see also 1

Pa.C.S. § 1921(a) (“Every statute shall be construed, if possible, to give effect to all its




                             [J-73-2017] [MO: Saylor, C.J.] - 9
provisions.”). The new definition of “other critical communities” identifies specific species

of plants and animals that, while not threatened or endangered, must be considered

during the permitting process. As Secretary Perry testified, the PNDI database merely

provides DEP with a mechanism, long employed, to identify those species that

Pennsylvania agencies with regulatory authority in this area categorize as worthy of

special concern and protection. N.T., 10/25/2016, at 161. Contrary to the Commonwealth

Court’s contention that section 3215(c)(4) provides DEP with no statutory authority to

consider these species of special concern during the well permitting process,9 DEP

clearly has the statutory authority to consider the impacts on “other critical communities,”

and section 3274 of the Act provides the EQB with the authority to promulgate regulations

necessary to implement section 3215. 58 Pa.C.S. § 3274.

       The lack of evidence regarding adverse effects on the public interest

       With respect to the request for a preliminary injunction in Count I, MSC had the

burden of proving that an injunction prohibiting the enforcement of section 78a.15(f)

(“common areas of a school’s property or playgrounds”) and the definition of “other critical

communities” in section 78a.1 would have no adverse effects on the public interest. The

Commonwealth Court concluded that MSC had met this burden because the Agencies

“did not provide any evidence during the hearing in this matter to prove that enjoining

preliminarily the enforcement of these discrete provisions will harm any person, entity, or

the public in general.” Commonwealth Court Opinion, 11/8/2016, at 19 n.13. In its brief

filed with this Court, MSC concurs, observing that the record here contains no evidence

of “any public harm at all.” MSC’s Brief at 32. The Majority concluded that it has “no

9 Pursuant to Article I, Section 27 of our Constitution, “species of special concern” are
among the many public natural resources that are “the common property of all the
people.” Pa. Const. art. I, § 27. The Agencies’ protective inclusion of species sensitive
to environmental factors is precisely the stewardship that our Environmental Rights
Amendment requires.


                            [J-73-2017] [MO: Saylor, C.J.] - 10
basis to disagree” that “issuing the preliminary injunction, narrowly tailored as appropriate,

would not adversely affect the public interest.” Majority Op. at 24.

       This analysis unquestionably, and improperly, shifts the burden of proof on the

sixth prong from MSC to the Agencies. It was MSC’s burden of proof to establish that

enjoining the challenged regulations would not adversely affect the public interest, and

the Agencies had no obligation to introduce any evidence on this issue. Ironically, MSC’s

observation that the record does not contain any evidence of “any public harm at all” is

likely true, although the reason for this state of affairs is that MSC, despite its burden of

proof on the issue, introduced no such evidence into the record. The Majority offers no

explanation as to how the absence of evidence that the public will not be adversely

affected by an injunction on new environmental regulations somehow constitutes proof

that the public will not, in fact, be adversely affected. By statute, the Agencies have an

obligation to regulate unconventional well drilling to protect “the health, safety,

environment and property of Pennsylvania citizens.” 58 Pa.C.S. § 3202(1). As a result,

here the “public interest” in the enforcement of these new environmental regulations, duly

promulgated pursuant to the Agencies’ rulemaking authority, is directly aligned with those

of the Agencies. Enjoining enforcement of these regulations is, absent any contrary

evidence from MSC, clearly not in the public interest, as during the pendency of the

injunction DEP may not consider the impacts of fracking activities within 200 feet of

recreational areas and playgrounds, and must ignore the impacts that fracking activities

will have on species of special concern.


Area of review (Count II)

       Sections 78a.52a(c)(3) and 78a.73(c) and (d) require drillers to identify and monitor

existing oil and gas wells potentially impacted by ongoing fracking activities and, if

appropriate, to plug those wells. 25 Pa. Code §§ 78a.52a(c)(3), 78a.73(c)-(d). The



                            [J-73-2017] [MO: Saylor, C.J.] - 11
Commonwealth Court found that a substantial legal question exists with regard to

implementation of these regulations, namely, whether the Agencies may obligate a driller

to monitor or plug wells that are on property that it does not own. Commonwealth Court

Opinion, 11/8/2016, at 25. The Majority agrees that a substantial legal question exists

with respect to DEP’s authority to impose obligations on drillers to enter other persons’

lands and visually monitor and/or cap wells. Majority Op. at 28.

        I question whether a substantial legal question has been identified. The Clean

Streams Law, 35 P.S. §§ 691.1 - 691.1001, provides that DEP has the power to authorize

entry onto others’ land to protect against pollution or the danger thereof. 35 P.S. §

691.316 (“Whenever the department finds that pollution or a danger of pollution is

resulting from a condition which exists on land in the Commonwealth the department …

may order such owner or occupier to allow a mine operator or other person or agency of

the Commonwealth access to the land to take such action.”). The Majority’s attempt to

distinguish this provision from the present regulation by stating that section 691.316 “is

only triggered by actual pollution or a danger of pollution,” Majority Op. at 28, ignores the

Agencies’ presentation of evidence in these proceedings. At the evidentiary hearing,

Secretary Perry testified regarding the substantial evidence of the dangers of pollution

associated with well communication10 incidents. N.T. 10/25/2016 at 119-20 (“It's a multi-




10   According to the RAF,
        The Department estimates that there are approximately 300,000
        abandoned wells across Pennsylvania. A serious risk to waters of the
        Commonwealth is posed when an operator inadvertently alters an
        abandoned well by inducing hydraulic or pressure communication during
        the hydraulic fracturing process. Altering an abandoned well by subjecting
        it to pressures and reservoir sections it was not necessarily built to isolate
        can and has led to a number of issues, including methane migration and
        water supply impacts. Even in instances when no water supplies are



                             [J-73-2017] [MO: Saylor, C.J.] - 12
day geyser event with … fluids coming out of the out of the abandoned well onto the

surface. And also when it's happened, we've seen significant gas migration problems

where … [gas] is outside of the well bore getting into groundwater.”). Conversely, the

Commonwealth Court acknowledged that “MSC did not provide any testimony or other

evidence relating to the difficulty that the industry would have in complying with these

provisions.” Commonwealth Court Opinion, 11/8/2016, at 26.

       Moreover, as with respect to public resources, MSC failed to meet its burden of

proof with respect to adverse effects to the public interest. The Commonwealth Court

made no findings with regard to this prerequisite for a preliminary injunction, stating, in

conclusory fashion, only that “[r]egulation will not adversely affect the public interest.” Id.

at 27. In attempting to support this bald contention, MSC references figures obtained

from the RAF form, which reflect that number of significant incidents is low. MSC’s Brief

at 39-40. The Majority finds this argument to be persuasive, as it concludes that “the

expected effect on the public interest would be slight due to the low probability of a well-

communication incident occurring within the limited timeframe involved.” Majority Op. at

31.

       I find this position to be entirely unpersuasive. The second prong of the test for a

preliminary injunction (”greater injury would result from refusing the injunction than from

granting it”) requires a balancing of interests. The sixth prong, however, does not.

Instead, it requires the party requesting the preliminary injunction to meet its burden of

proof to show that “the preliminary injunction will not adversely affect the public interest.”

SEIU, 104 A.3d at 501 (emphasis added). To meet this burden of proof, it is insufficient



       affected, communication with any adjacent oil or gas well has the potential
       to lead to well control incidents that may pose serious safety hazards.
RAF at 19, reprinted at R.R. 774.


                            [J-73-2017] [MO: Saylor, C.J.] - 13
to offer evidence that the risk to the public is merely “slight,” as it must instead be

demonstrated that the entry of a preliminary injunction will have no effect on the public

interest.

       In connection with the regulation at issue, the public has an obvious interest in

permitting the Agencies to enforce the regulations at issue. At the evidentiary hearing,

Secretary Perry testified that while well-communication incidents “are not a common

occurrence,” they do occur and that when they do they “pose great risks to public safety

as well as … potentially a multimillion dollar cleanup liability to remediate the well and

remove the polluted soils and groundwater.” N.T. 10/25/2016 at 120. This unrebutted

testimony establishes that the lack of regulation during the pendency of this lawsuit does

in fact expose the public to a non-zero probability of substantial risks to public safety as

well as significant water pollution and high cleanup costs.11           For this reason, no

preliminary injunction should have issued.


Impoundments (Count IV)

       Section 78a.59c is a new regulation that governs centralized impoundments, which

are storage facilities that hold waste water generated from drilling activities. Section

78a.59c mandates that all centralized impoundments must be closed or re-permitted by

October 8, 2019 in accordance with regulations promulgated pursuant to the Solid Waste

Management Act, 35 P.S. §§ 6018.101-6018.1003 (“SWMA”). At the evidentiary hearing,


11  Contrary to the Majority’s contention that the public interest need not be considered
here because the risk of a well communication incident is “remote and speculative,” in my
view five prior documented incidents constitutes a substantial risk of potential harm to the
public. This is particularly true since, as Secretary Perry testified, a single incident during
the pendency of this case could result in a significant risk to public safety as well as
substantial water pollution and high cleanup costs. See Samaritan v. First Judicial Dist.
Court, 303 Ph.D. 959, 965 (9th Cir. 2002) (“If … the impact of an injunction reaches
beyond the parties, carrying with it a potential for public consequences, the public interest
will be relevant to whether the district court grants the preliminary injunction.”.


                            [J-73-2017] [MO: Saylor, C.J.] - 14
Secretary Perry testified that although the Agencies had previously taken the position that

DEP could not regulate centralized impoundments pursuant to SWMA, in light of the

significant evidence of leakage from such facilities uncovered during the rulemaking

proceedings, they had reconsidered their position with respect to their regulatory authority

under SWMA. N.T., 10/25/2016, at 134-35. Based upon this testimony, the Majority

concludes that MSC has identified a substantial legal question, namely how centralized

impoundments “are not part of the associated well site for SWMA purposes, whereas

they were part of the well site before it was known that they could leak.” Majority Op. at

36 (emphasis in original).

       Even assuming that this constitutes a substantial legal question, the Majority’s

analysis with respect to the adverse effects from enjoining enforcement of the new

regulation on the public interest fails. According to the Majority, the Commonwealth

Court’s preliminary injunction is limited to existing centralized impoundments and that, as

such, “granting interim relief would not adversely affect the public interest.” Id. at 37. The

certified record, however, belies this determination, as Secretary Perry testified at the

evidentiary hearing that of the twenty-two centralized impoundment facilities then in

existence in the Commonwealth, six have had their liners fail, resulting in leaking and

groundwater contamination. N.T., 10/25/2016, at 134-35 (“There's only about 22 of them

in the Commonwealth, and I think over time we've identified half a dozen that have failed,

some of them more spectacularly than others.”). Based on this testimony, the public

interest is affected by an injunction, as there is a high probably of additional leaks of waste

water into groundwater supplies. MSC offered no evidence at the hearing to rebut

Secretary Perry’s testimony, and thus failed to sustain its burden of proof with respect to

the sixth prerequisite for a preliminary injunction.




                             [J-73-2017] [MO: Saylor, C.J.] - 15
      Conclusion

      For these reasons, I would reverse the Commonwealth Court’s entry of a

preliminary injunction on all counts. In this regard, I join in the Majority’s decision to

reverse with respect to Count IV (re: well-developed impoundments) and Count V (site

restoration). I dissent from the Majority’s decision to affirm the entry of a preliminary

injunction with respect to Count I (public resources), Count II (area of review) and Count

IV (re: centralized impoundments).




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