Energy. Environment. Economy.

Did Pennsylvania’s highest court unravel environmental protections for oil and gas?

The state Supreme Court struck down part of Act 13 dealing with stream and wetland setbacks for gas wells.  The law required unconventional gas wells  to be 300 feet from these waterways, and the edge of the well site to be at least 100 feet away.

Tom Downing/ witf

In a 4-2 decision, Pennsylvania’s Supreme Court struck down parts of state law dealing with stream and wetland setbacks for oil and gas development. Act 13 had required unconventional gas wells to be at least 300 feet from these waterways, with the edge of the well site at least 100 feet away. Drillers have said they will still adhere to the setbacks, even though they are no longer law.

The state Supreme Court decision to strike down parts of Act 13 as unconstitutional last month was hailed as a victory for local governments and environmental groups who argued the 2012 oil and gas law violated the environmental rights of Pennsylvanians.

But the court decision also undid portions of the law requiring minimum setbacks for oil and gas development near streams and wetlands.

That’s because Act 13 compelled the state Department of Environmental Protection (DEP) to waive the setback requirements if drillers submitted a plan showing they would take adequate precautions to protect waterways. According to the DEP, less than 10 percent of permit applications seek waivers.

The court found this to be unacceptable.

“Even these modest restrictions can be averted by the gas industry,” wrote Chief Justice Ronald Castille in the majority opinion.

Earlier this week Governor Corbett asked gas companies to keep following the setback standards, even though they are no longer law. The rules say the edge of an unconventional well site must be at least 100 feet away from a streams and wetlands. The well itself was required to be at least 300 feet.

“This action, which could imperil our water quality, is simply unacceptable,” Corbett said in a statement, referring to the court’s decision. “I am calling upon Pennsylvania’s oil and gas operators to honor both the spirit and intent of these setback provisions to continue helping us protect Pennsylvania’s water and natural resources.”

The state’s major gas industry trade groups have all agreed to continue to follow the setbacks, including the Marcellus Shale Coalition, the Pennsylvania Independent Oil and Gas Association, and the Associated Petroleum Industries of Pennsylvania.

Marcellus Shale Coalition president Dave Spigelmyer said in a statement the industry is committed to working with elected officials and local communities, “To make certain we have predictable and workable policies in place aimed at maximizing the benefits of natural gas while protecting our environment.”

The groups who challenged the constitutionality of Act 13 took issue with the section allowing the DEP to grant waivers, not the setbacks themselves. The court found those sections to be inextricably linked and struck them down together.

Environmental groups point out the DEP is still required to protect waterways from pollution under the state’s Clean Streams Law and the Environmental Rights Amendment of Pennsylvania’s constitution.

Delaware Riverkeeper, Maya van Rossum, was among those challenging the law.

“The minimal buffers that were included in Act 13 were just that,” she says. “They were minimal and amounted to a giveaway to the industry.”

Here is the portion of Act 13 dealing with setbacks from waterways. The highlighted sections were struck down by the court.

Click here to read all of Act 13.


  • JimBarth

    The wetlands, waterway, setbacks as voluntarily established by Act 13 are pathetic, and meaningless as protective measures, even if observed by the extraction company. Thanks to StateImpact for providing the graphic. I ask people to think about those distances, and consider that the well pad would be up to 5 acres in size, and might easily be a permanent “home” for 10 gas / oil wells. Further consider that such a setback would apply to the abominable flow back waste “impoundments”, such as the Worstel, that Range employs in Washington County, and that are legal across PA. I don’t believe there are even size limitations to those impoundments, or the amount of flow back waste they may hold, open air.

    In 1990, when my wife and I wanted to have a 1/5th acre pond constructed on our property, the US wetlands act required us to set that back from any wetland, even if only a small patch of wetland plants, by a 50 foot margin. That was mandatory. We hired a wetlands expert to identify all the wetlands on our 25 acres, then we had the wetlands surveyed, then the expert filed his report with the A.C.E. in Philadelphia for approval. We paid about $1,400 for that process, which took 9 months to receive approval of our location, which was about 75 feet from a wetland, and this was for a fresh water pond!

    The voluntary setbacks the industry is permitted, along with all the other ineffective, minimal regulations required by PA DEP, are an insult to the citizens of the Commonwealth.

    • Maggie Henry

      I never saw a waiver DEP didn’t approve so the setbacks are/were beyond meaningless!

    • Pragmatism Wins

      The Marcellus industry is ten years old this year. Nearly 10,000 wells have been drilled. Can you name one waterway in Pennsylvania that is being polluted right now as a result of inadequate setbacks.?

      • JimBarth

        First of all, according to the PA DEP website, Marcellus section, 7,424 unconventional wells have been drilled in PA between the dates of January 1, 2005, and December 31, 2013, not “nearly 10,000 wells”. Second, I would hazard an estimate that many of those wells have not yet been frac’ed, and are not yet in production.

        “polluted right now” is not the question. There have been hundreds of incidents of accidents, spills and migration documented during that period. My comment is about the pathetic regulations in PA regarding setbacks. So, you think a 100 foot setback is adequate for this type of toxic industrial activity (well pad)?

        Go tell that to the 300,000 people in WV who are “currently”, and for days, inflicted with poisoned water as a result of a leak from a Freedom Industries chemical tank. That industrial site is right on the river. One hundred foot setback?

        • Scott

          Governer Corporate’s appointment of Aburzzo to be Sec of DEP is an OUTRAGE!!!!!!!!

  • izz


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