Pennsylvania Commonwealth Court Decides Foundation Case in favor of DEP and Natural Gas Producer
This post was written by Nicolle Snyder Bagnell.
In a unanimous opinion authored by President Judge Leadbetter, the Commonwealth Court affirmed the Environmental Hearing Board's opinion last week in Foundation Coal Resources Corp. v. DEP, No. 619 C.D. 2009, ---A.2d --- (Pa. Commw. April 27, 2010), in a case involving objections filed by a coal owner to an oil and gas producer's natural gas well permit application. The Board had held that the coal company, Foundation, did not have standing to bring an objection under Section 202 of the Oil and Gas Act, which allows owners of "projected and platted but not yet operating" coal mines to object to the proposed location of a producer's well. The Commonwealth Court agreed that where a coal company owned the mine, but where the mine was not "projected and platted" it did not have standing to to make such an objection.
Foundation also challenged the Department of Environmental Protection's decision to issue permits to the gas producer without imposing five "special conditions" that the coal company had proposed. The Board had previously determined that the conditions were beyond the scope of the Department's authority to impose where they tried "to rewrite the Oil and Gas Act under the guise of necessary special conditions to ensure safety..." EHB's Adjudication at 54. The Commonwealth Court agreed, finding that while the Department has the authority to impose conditions "where it has been shown to be necessary for the safe operation of a particular mine, it has no obligation to do so where such necessity has not been shown."
