       IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Pennsylvania Independent Oil & Gas      :
Association,                            :
                                        :
                         Petitioner     :
                                        :
            v.                          :   No. 321 M.D. 2015
                                        :
Commonwealth of Pennsylvania,           :   Argued: November 18, 2015
Department of Environmental             :
Protection,                             :
                                        :
                         Respondent     :


BEFORE:     HONORABLE DAN PELLEGRINI, President Judge
            HONORABLE BERNARD L. McGINLEY, Judge
            HONORABLE BONNIE BRIGANCE LEADBETTER, Judge
            HONORABLE RENÉE COHN JUBELIRER, Judge
            HONORABLE ROBERT SIMPSON, Judge
            HONORABLE PATRICIA A. McCULLOUGH, Judge
            HONORABLE ANNE E. COVEY, Judge


OPINION NOT REPORTED

MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER                             FILED: December 29, 2015

      Before this Court in our original jurisdiction are the preliminary objections
(POs) of the Commonwealth of Pennsylvania, Department of Environmental
Protection (DEP) to the “Petition for Review in the Nature of a Complaint for
Declaratory Relief” (Petition for Review) filed by the Pennsylvania Independent
Oil & Gas Association (PIOGA). Pursuant to the Declaratory Judgments Act,1
PIOGA seeks a declaration from this Court “that DEP is prohibited from applying
and enforcing” the requirements of Section 3215(c) of the Act commonly known
as the Pennsylvania Oil and Gas Act (Act 13), 58 Pa. C.S. § 3215(c),2 on well
permit applicants because the Pennsylvania Supreme Court enjoined the
application and enforcement of that provision, among others, in Robinson
Township v. Commonwealth, 83 A.3d 901 (Pa. 2013) (plurality).3 (Petition for
Review ¶¶ 7-9.)

       1
          42 Pa. C.S. §§ 7531-7541. Section 7541(a) of the Declaratory Judgments Act states that
“[i]ts purpose is to settle and to afford relief from uncertainty and insecurity with respect to
rights, status, and other legal relations, and is to be liberally construed and administered.” 42 Pa.
C.S. § 7541(a).

       2
           This provision provides as follows:

               (c) 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) 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).

       3
         In Robinson Township, our Supreme Court examined the “entire decisional process” for
permitting oil and gas wells under Section 3215(b) through (e) of Act 13 and, ultimately, a
majority of the justices found that Section 3215(b)(4) and (d) were unconstitutional. Robinson
Township, 83 A.3d at 982-85, 1000-01. The Supreme Court then reviewed the remaining
                                                                                    (Continued…)
                                                  2
       I.     The Petition for Review
       On June 19, 2015 PIOGA filed the Petition for Review averring, in relevant
part, the following. PIOGA, a trade association, has members who “own and lease
property interests that enable them to conduct oil and gas exploration, drilling,
production, and related operations in Pennsylvania.”4 (Petition for Review ¶¶ 1-2.)
DEP is the agency responsible for applying, implementing, and enforcing Act 13.
As part of its administrative duties, “DEP reviews well permit applications
submitted by – and issues well permits to – PIOGA members.” (Petition for
Review ¶ 4.)       DEP requires applicants for well permits to comply with the
requirements set forth in a form entitled Coordination of a Well Location with
Public Resources (Public Resources Form) and the Pennsylvania Natural Diversity
Inventory (PNDI) Policy.5


       “DEP has expressly acknowledged that Section 3215(c) of Act 13 serves as
its basis for imposing the requirements set forth in the Public Resources Form and

provisions of Section 3215(b) to determine whether they could be severed from Section
3215(b)(4) and, per a majority of the justices, determined that they could not and enjoined the
application of Section 3215(b) in its entirety. Id. at 999, 1008-09. Finally, the Supreme Court
considered Section 3215(c) and (e), which are part of the same decisional process, and a majority
of the justices determined that those two provisions also were unconstitutional and their
application was enjoined. Id. at 999, 1009.

       4
          “An association may have standing as a representative of its members . . . as long as
[the association] ‘has at least one member who has or will suffer a direct, immediate, and
substantial injury to an interest as a result of the challenged action[, i.e., is aggrieved, the
association] has standing.’” Energy Conservation Council of Pennsylvania v. Public Utility
Commission, 995 A.2d 465, 476 (Pa. Cmwlth. 2010) (quoting Parents United for Better Schools
v. School District of Philadelphia, 646 A.2d 689, 692 (Pa. Cmwlth. 1994)).

       5
          The Public Resources Form and the PNDI Policy are Exhibits E and F, respectively, to
the Petition for Review.

                                               3
requirements in the PNDI Policy.” (Petition for Review ¶ 24.) In particular, the
Instructions for Completing an Application for a Permit to Drill or Alter an Oil or
Gas Well (Instructions)6 specifically state that “‘Section 3215(c) of [Act 13]
requires [DEP] to consider the impact of proposed well[s] on various public
resources when making a determination on a well permit. 58 Pa. C.S. § 3215(c).’”
(Petition for Review ¶ 25 (quoting Instructions at 8).)                The Instructions also
indicate that, in order to obtain a well permit, “applicants must submit the Public
Resources Form (if applicable) and document compliance with the PNDI Policy.”
(Petition for Review ¶ 25.)           When an applicant does not provide the Public
Resources Form, if required, or comply with the PNDI Policy, DEP may deny the
permit application as incomplete pursuant to Section 3211(e) of Act 13, 58 Pa. C.S.
§ 3211(e).


      The Permit Application to Drill and Operate an Unconventional Well
(Application)7 asks the applicant whether the proposed well would “‘be located
where it may impact a public resource as outlined in the [Public Resources
Form].’” (Petition for Review ¶ 26 (quoting Application at 2).) If the answer is
yes, the applicant is required to “‘attach a comp[l]eted copy of the form and
clearance letters from applicable agencies’” to its application.8              (Petition for
Review ¶ 26 (quoting Application at 2).)


      6
          The Instructions are Exhibit B to the Petition for Review.

      7
          The Application is Exhibit D to the Petition for Review.

      8
          The Petition for Review avers that:

                                                                              (Continued…)
                                                 4
       The PNDI is a database “managed by the Pennsylvania Department of
Conservation and Natural Resources (‘DCNR’)” that “build[s], maintain[s], and
provide[s] accurate and accessible ecological information according to DCNR’s
enabling statute.” (Petition for Review ¶ 31.) Pursuant to DEP’s PNDI Policy,

       certain permit applicants [must]: (1) identify habitats of ‘special
       concern species;’ (2) describe any means to avoid or mitigate impacts;
       (3) provide documentation that they completed the online PNDI
       environmental review; and (4) notify jurisdictional agencies, such as
       the [Pennsylvania] Game Commission, regarding such impacts
       identified on the PNDI site.

(Petition for Review ¶ 32.) The PNDI Policy indicates that protection of “‘Special
Concern Species’ . . . is a legal requirement only under certain permitting
programs,” including permits issued under Section 3215 of Act 13. (Petition for
Review ¶ 33.) DEP includes the PNDI Policy’s definitions and requirements in its
well permitting process and “expressly require[s] well permit applicants to confirm
that they have satisfied the requirements of the PNDI Policy.”                   (Petition for
Review ¶ 34.)         By “incorporating [the] PNDI[] requirements into the well
permitting process” DEP is “applying and enforcing Section 3215(c) of Act 13, in
particular, those requirements . . . identified in Section 3215(c)(4) as ‘habitats of


       to complete the Public Resources Form the applicant must[:] (1) determine
       whether the well will be within or near any of the public resources listed in
       Section 3215(c) that are land or water features and sites; (2) list the names of
       agencies responsible for such resources; (3) communicate with those agencies and
       indicate whether agency approval is necessary or has been obtained[;] (4) report
       any potential conflict with a “species of special concern” and whether it has been
       resolved[;] and (5) describe in detail the measures that the applicant will employ
       to protect those public resources.

(Petition for Review ¶ 27.)

                                               5
rare and endangered flora and fauna and other critical communities.’” (Petition for
Review ¶ 36 (quoting 58 Pa. C.S. § 3215(c)(4)).)


      Based on these averments, PIOGA asserts that DEP is using the Public
Resources Form and PNDI Policy as vehicles to apply and enforce Section
3215(c). PIOGA alleges that DEP no longer has statutory authority to require
PIOGA’s members to comply with Section 3215(c), through the Public Resources
Form and PNDI Policy, because the application and enforcement of that provision
was enjoined by the Supreme Court in Robinson Township. “DEP’s imposition of
these requirements creates untenable uncertainty and insecurity with respect to
[the] rights, status, and legal relations of PIOGA’s members in the day-to-day
operation of their businesses, including (but not limited to) their relationships with
surface landowners and other public agencies.” (Petition for Review ¶ 9.) PIOGA
requests a declaration “that DEP has no authority to mandate that well permit
applicants satisfy the requirements set forth in the Public Resources Form” or “the
requirements set forth in the PNDI Policy related to [the] enjoined Section
3215(c),” and any other just and proper relief, including costs and reasonable
attorneys’ fees. (Petition for Review, Wherefore Clause.)

      II.    The POs
      DEP filed POs on July 31, 2015 alleging that PIOGA has not raised a
justiciable issue in the Petition for Review and has an adequate remedy at law, an




                                          6
administrative appeal, which PIOGA has not exhausted or established that an
exception to the exhaustion doctrine applies.9


       III.   Discussion
       In reviewing the POs, we apply the following standards. “In ruling on
preliminary objections, the courts must accept as true all well-pled facts that are
material and all inferences reasonably deducible from the facts.” Guarrasi v. Scott,
25 A.3d 394, 400 n.5 (Pa. Cmwlth. 2011). However, we “are not required to
accept as true any unwarranted factual inferences, conclusions of law or
expressions of opinion.” Id. To sustain preliminary objections, “it must appear
with certainty that the law will permit no recovery” and “[a]ny doubt must be
resolved in favor of the non-moving party.” Id.

       a. Justiciability
       DEP argues, in support of dismissal, that PIOGA has not alleged any
justiciable issues because PIOGA does not have standing and the Petition for
Review does not assert a case or controversy that is ripe for judicial review.




       9
         Following the Supreme Court’s decision in Robinson Township, PIOGA, which was not
a party in Robinson Township, filed an application with the Supreme Court to intervene in that
matter in order to request that the Supreme Court enforce its judgment enjoining DEP from
enforcing the unconstitutional provisions of Act 13. (DEP’s Motion for Stay of the Proceedings
(Motion for Stay) ¶ 3.) DEP requested that the Petition for Review filed in this Court be stayed
pending the Supreme Court’s action on PIOGA’s application. (Motion for Stay ¶¶ 6-9.) This
Court denied DEP’s Motion for Stay by Order dated July 16, 2015. The Supreme Court denied
PIOGA’s application to intervene on August 20, 2015.

                                               7
            1. Standing
          DEP argues that PIOGA has only made general allegations that the
permitting program “creates untenable uncertainty and insecurity” and is a burden
for its members. (Petition for Review ¶ 9.) These allegations, according to DEP,
do not aver a direct and immediate harm necessary for standing, particularly where
PIOGA has not alleged any concrete harm to its members, such as the denial of a
permit, in the eighteen months since Robinson Township. Rather, DEP asserts,
“PIOGA conjures up . . . [a] range of speculative ‘what ifs’ and abstract
uncertainties to demonstrate the existence of harm where none exists.” (DEP’s Br.
at 10.)


          PIOGA argues that it has standing because, pursuant to Arsenal Coal
Company v. Department of Environmental Resources, 477 A.2d 1333 (Pa. 1984),
and its progeny, a party need not refuse to comply, and have its permit denied,
before it can challenge an invalid regulation or, in this instance, a permitting
process that relies on an unconstitutional provision of Act 13. The purpose of
declaratory judgment, PIOGA asserts, is to eliminate the untenable choice
presented here, in which its members must either comply with unlawful
requirements or suffer the denial of their permits. PIOGA emphasizes that it has
pled that its members:        conduct oil and gas operations throughout the
Commonwealth; are required to obtain permits from DEP in order to drill their
wells; and must comply with the Public Resources Form and PNDI Policy in order
to get those permits. PIOGA notes, in its brief, that the permitting process for its
members is timely and costly, and that the failure of an agency to comply with the



                                         8
law constitutes irreparable harm in itself. Wyland v. West Shore School District,
52 A.3d 572, 583 (Pa. Cmwlth. 2012).


      Our Supreme Court recently addressed standing in declaratory judgment
actions in Office of Governor v. Donahue, 98 A.3d 1223 (Pa. 2014), explaining:

              In Pennsylvania, the doctrine of standing . . . is a prudential,
      judicially created principle designed to winnow out litigants who have
      no direct interest in a judicial matter. In re Hickson, . . . 821 A.2d
      1238, 1243 ([Pa.] 2003). For standing to exist, the underlying
      controversy must be real and concrete, such that the party initiating
      the legal action has, in fact, been “aggrieved.” Pittsburgh Palisades
      Park, LLC v. Commonwealth, . . . 888 A.2d 655, 659 ([Pa.] 2005). As
      this Court explained in William Penn Parking Garage[, Inc. v. City of
      Pittsburgh, 346 A.2d 269 (Pa. 1975)], “the core concept [of standing]
      is that a person who is not adversely affected in any way by the matter
      he seeks to challenge is not ‘aggrieved’ thereby and has no standing to
      obtain a judicial resolution to his challenge.” [Id.] at 280–81. A party
      is aggrieved for purposes of establishing standing when the party has
      a “substantial, direct and immediate interest” in the outcome of
      litigation. Johnson [v. American Standard, 8 A.3d [318,] 329 [(Pa.
      2010)] (quoting Fumo v. City of Philadelphia, . . . 972 A.2d 487, 496
      ([Pa.] 2009)). A party’s interest is substantial when it surpasses the
      interest of all citizens in procuring obedience to the law; it is direct
      when the asserted violation shares a causal connection with the
      alleged harm; finally, a party’s interest is immediate when the causal
      connection with the alleged harm is neither remote nor speculative.
      Id.

             Thus, while the purpose of the Declaratory Judgment[s] Act, 42
      Pa. C.S. §[§] 7531[-7541], is to “settle and to afford relief from
      uncertainty and insecurity with respect to rights, status, and other legal
      relations, and is to be liberally construed and administered,” the
      availability of declaratory relief is limited by certain justiciability
      concerns. 42 Pa. C.S. § 7541(a). In order to sustain an action under
      the Declaratory Judgment[s] Act, a plaintiff must allege an interest
      which is direct, substantial and immediate, and must demonstrate the
      existence of a real or actual controversy, as the courts of this


                                          9
      Commonwealth are generally proscribed from rendering decisions in
      the abstract or issuing purely advisory opinions.

Id. at 1229 (fourth alteration in original).


      Applying these principles to the facts in Donahue, the Supreme Court held
that the Office of Governor (OG) had standing to institute a declaratory judgment
action against the Office of Open Records (OOR) challenging the OOR’s
interpretation of a statutory provision of the Right-to-Know Law10 (RTKL) as
being erroneous, despite the OG not being adversely affected by an OOR decision.
Donahue, 98 A.3d at 1225, 1230-31. The OOR had announced, in dicta, how it
would interpret and enforce a particular provision of the RTKL in the future, with
which the OG disagreed. Id. at 1226. The OG filed a declaratory judgment action
in this Court’s original jurisdiction, seeking a declaration that the OOR’s
interpretation was erroneous, which, after overruling OOR’s preliminary
objections challenging, inter alia, the OG’s standing, this Court granted. Id. at
1226-27.


      On appeal the Supreme Court explained, with regard to the OG’s standing,
that the OOR’s interpretation of the RTKL would impact how the OG would
handle RTKL appeals, that the “OG’s allegation of harm is neither remote nor
speculative,” and that the “OG possesses a cognizable interest in the outcome of
this dispute that surpasses the interest of all citizens.” Id. at 1230. The Supreme
Court then concluded that, because the OG handles RTKL requests and must
comply with the RTKL, the OOR’s interpretation of the RTKL “adversely, directly

      10
           Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101 – 67.3104.

                                               10
and immediately impacts [the] OG” and, therefore, the OG had standing. Id.
Citing, among other precedent, Arsenal Coal, the Supreme Court summarized as
follows

      [f]or these reasons we conclude that [the] OG possesses standing to
      challenge in a declaratory judgment action OOR’s interpretation of
      [the RTKL]. Our position in this respect is consistent with similar
      decisions where we have recognized the justiciability of declaratory
      judgment actions seeking pre-enforcement review of an administrative
      agency’s interpretation and enforcement of a governing statute.

Id. at 1230.


      Arsenal Coal, which the Supreme Court cited in Donahue and PIOGA relies
upon here, involved an equitable action filed in this Court’s original jurisdiction by
fifty-five anthracite coal mine operators and producers (companies) challenging the
implementing regulations governing environmental performance standard for
anthracite coal mining. Arsenal Coal, 477 A.2d at 1334-35. The companies
sought pre-enforcement judicial review of those regulations from this Court,
asserting that the Environmental Quality Board, which had promulgated the
regulations, had exceeded its statutory authority in doing so. Id. at 1335. In
resolving the issue of whether this Court could exercise jurisdiction over the
companies’ complaint, the Supreme Court reasoned:

             Where the effect of the challenged regulations upon the
      industry regulated is direct and immediate, the hardship thus presented
      suffices to establish the justiciability of the challenge in advance of
      enforcement.

             We believe that the asserted impact of the regulations in the
      instant case is sufficiently direct and immediate to render the issue
      appropriate for judicial review; the lengthy process by which the
      validity of the regulations will be addressed on a basis of application
                                         11
      to the litigant would result in ongoing uncertainty in the day[-]to[-]day
      business operations of an industry which the General Assembly
      clearly intended to protect from unnecessary upheaval.

            Appellants may refuse to comply and test the regulations by
      appealing, for example, a denial of permit to operate, or a denial of
      bond release, or by defending actions imposing sanctions for non-
      compliance. 52 P.S. § 1396.4(b).[11] This proposed avenue of review is
      beset with penalties and impediments to the operation of the anthracite
      industry rendering it inadequate as a satisfactory alternative to the
      equitable action initiated under the original jurisdiction of
      Commonwealth Court.

             The alternative to challenging the regulation through
      noncompliance is to submit to the regulations. We cannot say that the
      burden of such a course is other than substantial, accepting, as we
      must on a motion to dismiss on the pleadings, the allegations of the
      complaint as true. Appellants have alleged that the regulations require
      the expenditure of substantial sums to comply which, while not
      immediately calculable, will substantially impair the cash flow of all
      Appellants. Whether or not this allegation is true, it is clear that if
      Appellants elect to comply and await judicial determination of
      validity in subsequent piecemeal litigation, the process would be
      costly and inefficient.

Id. at 1339-40 (citations omitted). Recognizing that Arsenal Coal involved a pre-
enforcement challenge to new regulations, this Court has clarified that

      statutory, post-enforcement review is adequate unless the regulation
      itself causes actual, present harm. In other words, unless the
      regulation itself is self-executing, there is no harm done to the litigant
      until [DEP] takes some action to apply and enforce its regulations, in
      which case the normal post-enforcement review process is deemed an
      adequate remedy.

Duquesne Light Company, Inc. v. Department of Environmental Protection, 724
A.2d 413, 417 (Pa. Cmwlth. 1999) (citation omitted) (emphasis added). See also

      11
           Act of May 31, 1945, P.L. 1198, as amended.

                                              12
Rouse & Associates – Ship Road Land Limited Partnership v. Pennsylvania
Environmental Quality Board, 642 A.2d 642, 645, 647 & n.2 (Pa. Cmwlth. 1994)
(holding that a developer had standing under Arsenal Coal having demonstrated
that it would suffer actual and immediate harm before DEP enforced new
regulations because it would have to expend a significant amount of time and
money simply to apply for the required permit); Costanza v. Department of
Environmental Resources, 579 A.2d 447, 449-50 (Pa. Cmwlth. 1990) (holding that
petitioners’ business operations were not immediately subject to the regulations
upon their promulgation, but only upon the department taking action on their
application and, therefore, there was no immediate harm as in Arsenal Coal);
Grand Central Sanitary Landfill, Inc. v. Department of Environmental Resources,
554 A.2d 182, 184-85 (Pa. Cmwlth. 1989) (distinguishing Arsenal Coal on the
bases that the focus there was on the industry-wide implication of challenged
regulations, rather than the impact on a single petitioner, and the petitioner was not
currently in violation of the challenged regulations such that it would be directly
and immediately harmed thereby).


      From this precedent, the pertinent inquiry in determining whether there is
standing to bring a pre-enforcement action is whether the administrative process
causes a petitioner to suffer immediate and actual harm prior to the actual
enforcement of the challenged regulation or application of the interpretation. If a
petitioner will suffer such harm, the petitioner has standing to seek pre-
enforcement relief via a declaratory judgment action. Otherwise, post-enforcement
review is sufficient.



                                         13
      Having considered and accepted as true the factual allegations set forth in
the Petition for Review and the reasonable inferences deducible therefrom,
Guarrasi, 25 A.3d at 400 n.5, we conclude that PIOGA has standing to bring the
instant declaratory judgment action because PIOGA’s members will suffer
immediate and actual harm before submitting a permit application to DEP for
consideration. PIOGA’s members must obtain permits from DEP in order to
conduct their drilling operations, and PIOGA has sufficiently alleged that DEP’s
continued application of Section 3215(c) to the permitting process, which could
require those members to expend considerable time and money in order to simply
apply for the permit, “adversely, directly and immediately impacts” PIOGA’s
members and, therefore, PIOGA has standing. Donahue, 98 A.3d at 1230.


      The fact that PIOGA is challenging DEP’s permitting process, rather than
the facial validity of a statute or regulation, does not require a different result.
PIOGA need not challenge the validity of Section 3215(c), the purported basis for
DEP’s use of the Public Resources Form and PNDI Policy, because our Supreme
Court has already found that provision to be unconstitutional and enjoined its
application in Robinson Township. Additionally, in Donahue, the OG did not
challenge the validity of the RTKL, it challenged the OOR’s asserted interpretation
of certain provisions that would impact how OG would perform its own
obligations and duties under the RTKL. Donahue, 98 A.3d at 1225-26, 1230.
Thus, PIOGA is not precluded from challenging DEP’s permitting process under
the Declaratory Judgments Act.




                                        14
         2. Ripeness
      DEP next argues that the present issues are not adequately developed or ripe
for judicial review because PIOGA’s generalized allegations pertaining to the
delay and loss of property rights suffered by its members raise factual questions
about how DEP interprets and applies Act 13 to any particular well permit
application and the effects of that interpretation on PIOGA’s members.          DEP
contends these factual issues must be developed at the administrative level before
the Environmental Hearing Board (EHB). DEP further suggests that PIOGA will
not be harmed by utilizing the administrative procedure because its members have
been complying with the present permitting process, which is the same process
DEP used before Robinson Township.


      PIOGA responds that the factual issues asserted by DEP are immaterial to a
determination of whether DEP has authority to impose the Public Resources Form
and PNDI Policy requirements where the Supreme Court enjoined the application
of Section 3215(c) in Robinson Township. This legal issue, PIOGA argues, is
adequately developed to establish that an actual and ongoing controversy exists,
and all the facts necessary to review this issue are adequately pled in the Petition
for Review.


      The justiciability doctrine of ripeness addresses whether judicial intervention
occurs at the appropriate time.     Town of McCandless v. McCandless Police
Officers Association, 901 A.2d 991, 1002 (Pa. 2006). In deciding whether the
doctrine of ripeness bars consideration of a declaratory judgment action, we
consider “whether the issues are adequately developed for judicial review and what


                                        15
hardship the parties will suffer if review is delayed.” Rouse & Associates, 642
A.2d at 645 (emphasis added). “An actual controversy exists when litigation is
both imminent and inevitable and the declaration sought will practically help to
end the controversy between the parties.” Chester Community Charter School v.
Department of Education, 996 A.2d 68, 80 (Pa. Cmwlth. 2010). A conflict need
not have reached a “‘full-fledged battle’” in order for a matter to be ripe for
declaratory judgment.    Pennsylvania Game Commission v. Seneca Resources
Corporation, 84 A.3d 1098, 1103 (Pa. Cmwlth. 2014) (quoting Ronald H. Clark,
Inc. v. Township of Hamilton, 562 A.2d 965, 968 (Pa. Cmwlth. 1989)). Rather,

      [i]f [the] differences between the parties concerned, as to their legal
      rights, have reached the state of antagonistic claims, which are being
      actively pressed on one side and opposed on the other, an actual
      controversy appears; where, however, the claims of the several parties
      in interest, while not having reached the active stage, are nevertheless
      present, and indicative of threatened litigation in the immediate future,
      which seems unavoidable, the ripening seeds of a controversy appear.

Lakeland Joint School District Authority v. School District of Township of Scott,
200 A.2d 748, 751 (Pa. 1964) (citation omitted).


      Here, the issue set forth in the Petition for Review, whether DEP has the
authority to impose certain requirements as part of its permitting process after
Robinson Township, is adequately developed for purposes of ascertaining whether
declaratory relief is warranted. The lack of a factual record does not mean that this
issue is not ripe. PIOGA is not challenging the particular denial of a particular
application of one of its members. PIOGA is challenging DEP’s ability to apply
those requirements on any of its members and is, essentially, an industry-wide
challenge to DEP’s permitting process, which is analogous to the challenge raised

                                         16
in Arsenal Coal. It is apparent that a conflict between DEP and PIOGA’s members
concerning the validity of DEP’s permitting process as applied to all applicants is
“unavoidable [and] the ripening seeds of a controversy appear.” Lakeland Joint
School District Authority, 200 A.2d at 751. Declaratory judgment actions were
designed, in part, to eliminate the substantial expense and uncertainty that results
from the type of piecemeal litigation that DEP suggests will resolve an issue that
will affect this entire industry. Bayada Nurses, Inc. v. Department of Labor and
Industry, 8 A.3d 866, 876 (Pa. 2010). “The declaration sought will practically help
to end the controversy” and “[l]iberally construing and administering the
Declaratory Judgments Act, as we must,” the claims set forth in the Petition for
Review are justiciable. Seneca Resources Corporation, 84 A.3d at 1104.


      b. Administrative Remedies
      DEP next argues that PIOGA and its members have an adequate remedy at
law, an administrative appeal to the EHB from the denial of a permit application,
and that the failure to exhaust that remedy precludes judicial consideration of the
Petition for Review. DEP further argues that PIOGA has not established that one
of the exceptions to the failure to exhaust administrative remedies doctrine applies.
It asserts that Arsenal Coal and its progeny are not applicable because, unlike in
those cases, this matter does not involve an agency exceeding its statutory
authority by promulgating illegal regulations or a pre-enforcement challenge
seeking to enjoin DEP from enforcing a new regulation. DEP maintains that the
Petition for Review is an as-applied challenge to the permitting process, not a
facial challenge to a statute or regulation, and the outcome is dependent upon the
individual circumstances of each permit application. In this way, DEP asserts, this


                                         17
matter is analogous to Funk v. Department of Environmental Protection, 71 A.3d
1097 (Pa. Cmwlth. 2013).


      PIOGA responds that it need not pursue the existing administrative remedies
because this Court has jurisdiction to resolve facial challenges concerning the
validity of DEP’s permitting process in all of its applications on the basis that
DEP’s process is per se invalid. PIOGA explains that it could not pursue a facial
challenge to the underlying statutory support for the allegedly invalid permitting
process because the Supreme Court has already found Section 3215(c)
unconstitutional. Finally, PIOGA observes that the relief suggested by DEP, an
appeal to the EHB, is not adequate because it is challenging the “process” as a
whole, not the denial of a particular permit or license, and it is seeking declaratory
relief, which the EHB does not have the authority to grant. Empire Sanitary
Landfill, Inc. v. Department of Environmental Resources, 684 A.2d 1047, 1055
(Pa. 1996).


      “It is well settled that when an adequate administrative remedy exists, this
Court lacks jurisdiction to entertain a suit in either law or equity.” Grand Central
Sanitary Landfill, Inc., 554 A.2d at 184.         “The doctrine of exhaustion of
administrative remedies requires a party to exhaust all adequate and available
administrative remedies before the right of judicial review arises.”          Empire
Sanitary Landfill, Inc., 684 A.2d at 1053. It is a court-made doctrine “intended to
prevent premature judicial intervention into the administrative process” and
“operates as a restraint on the exercise of a court’s equitable powers and a



                                         18
recognition of the legislature’s direction to comply with statutorily-prescribed
remedies.” Id.


      However, there are several exceptions to this doctrine that, if applicable,
would allow a petitioner to file a complaint in this Court’s original jurisdiction
under the Declaratory Judgments Act. Id. at 1055. One such exception is where
the available statutory remedy is inadequate. Id. at 1054. Another is set forth in
Arsenal Coal and provides, as discussed above, that “[w]here the effect of the
challenged regulations upon the industry regulated is direct and immediate, the
hardship thus presented suffices to establish the justiciability of the challenge in
advance of enforcement.” Arsenal Coal, 477 A.2d at 1339. We conclude that,
under either of these exceptions, PIOGA’s Petition for Review is not barred by its
failure to exhaust its members’ administrative remedies before seeking judicial
review of the issue set forth therein.


      First, as our Supreme Court recognized in Empire Sanitary Landfill, Inc.,
although the EHB has some authority in certain cases to consider constitutional
questions concerning regulations within its jurisdiction, “[i]t does not . . . have the
power to grant declaratory judgment and injunctive relief pursuant to the
Declaratory Judgment[s] Act, . . . because only courts of record of the
Commonwealth have that jurisdiction.” Empire Sanitary Landfill, Inc., 684 A.2d
at 1055. Moreover, the EHB only has jurisdiction to review post-enforcement
matters and may not decide a pre-enforcement challenge. Machipongo Land and
Coal Company, Inc. v. Department of Environmental Resources, 648 A.2d 767,
770 (Pa. 1994), vacated in part on other grounds, 676 A.2d 199 (Pa. 1996). The


                                          19
EHB’s inability to undertake pre-enforcement review or award this relief may
render the available statutory remedy inadequate. Empire Sanitary Landfill, Inc.,
684 A.2d at 1054.


      Although DEP asserts that this is an as-applied challenge to the permitting
process, it is apparent from the Petition for Review that PIOGA is challenging the
facial validity of DEP’s permitting process, to the extent based on Section 3215(c),
as applied to every oil and gas permit application submitted to DEP. PIOGA seeks
an order from this Court declaring that the process presently used by DEP, which
DEP acknowledges is the same as before the Supreme Court found Section 3215(c)
unconstitutional in Robinson Township, is contrary to law, and enjoining DEP
from continuing to enforce and apply those unconstitutional provisions. PIOGA’s
attempt to enforce the Supreme Court’s determination that Section 3215(c), the
alleged enabling legislation here, is unconstitutional as a means to void DEP’s
permitting requirements is no different than challenging, in the first instance, the
constitutionality of the enabling legislation in an effort to void administrative
regulations promulgated pursuant to that legislation. PIOGA’s Petition for Review
is a facial challenge to DEP’s permitting process and, for this reason, Funk is
distinguishable. The EHB does not have jurisdiction to consider PIOGA’s pre-
enforcement challenge or the authority to grant the relief requested and,
consequently, the administrative remedy DEP purports is available is not adequate
to address PIOGA’s challenge. Empire Sanitary Landfill, Inc., 684 A.2d at 1054-
55; Machipongo Land and Coal Company, Inc., 648 A.2d at 770.




                                        20
      Second, this matter falls within the paradigm of Arsenal Coal and its
progeny and, therefore, PIOGA’s pre-enforcement challenge to DEP’s permitting
process is proper. One of PIOGA’s members could apply for a permit, not submit
a Public Resources Form or comply with the PNDI Policy, and appeal the denial of
the permit to the EHB.        However, as our Supreme Court explained: “[t]his
proposed avenue of review is beset with penalties and impediments to the
operation of the . . . industry rendering it inadequate as a satisfactory alternative to
the . . . action initiated under the original jurisdiction of Commonwealth Court.”
Arsenal Coal, 477 A.2d at 1340. We are not persuaded by DEP’s attempts to
distinguish Arsenal Coal from this matter and decline to require “piecemeal
litigation [that] would be costly and inefficient,” id., in order to obtain a judicial
determination regarding the legal rights and obligations of PIOGA’s members
following Robinson Township.


      IV.    Conclusion
      For these reasons, we conclude that PIOGA has asserted claims in the
Petition for Review that are justiciable and that PIOGA was not required to exhaust
the administrative remedies before seeking judicial review of DEP’s permitting
process in this Court’s original jurisdiction under the Declaratory Judgments Act.
Accordingly, we overrule DEP’s POs.



                                           ________________________________
                                           RENÉE COHN JUBELIRER, Judge




                                          21
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA



Pennsylvania Independent Oil & Gas      :
Association,                            :
                                        :
                         Petitioner     :
                                        :
              v.                        :   No. 321 M.D. 2015
                                        :
Commonwealth of Pennsylvania,           :
Department of Environmental             :
Protection,                             :
                                        :
                         Respondent     :


                                      ORDER

      NOW, December 29, 2015, the Preliminary Objections filed by the
Commonwealth of Pennsylvania, Department of Environmental Protection (DEP)
are hereby OVERRULED. DEP shall file an Answer to Petitioner’s Petition for
Review of a Complaint for Declaratory Relief within thirty (30) days of the date of
this Order.



                                        ________________________________
                                        RENÉE COHN JUBELIRER, Judge
