Marcellus Shale Coalition v. DEP – 292 A. 3d 921 (Pa. 2023)
Held: The General Assembly intended to give DEP the authority to promulgate regulations about unconventional gas wells.
From the opinion:
The enabling statute “included the grant of authority by the General Assembly to the Agencies to promulgate” the regulations at issue.
"Commonwealth agencies have no inherent power to make law or otherwise bind the public or regulated entities. Rather, an administrative agency may do so only in the fashion authorized by the General Assembly[.]" Nw. Youth Servs., Inc. v. Commonwealth, Dep't of Pub. Welfare, 620 Pa. 140, 66 A.3d 301, 310 (2013).
Properly enacted regulations are as binding as statutes - The General Assembly typically authorizes an agency to wield legislative rulemaking powers "by way of recourse to procedures prescribed in the Commonwealth Documents Law, the Regulatory Review Act, and the Commonwealth Attorneys Act." Id.[5] "These enactments comprise the core of Pennsylvania's scheme for notice-and-comment rulemaking by administrative agencies and legal and regulatory review by the Attorney General and the Independent Regulatory Review Commission[,]" id. at 305 n.2, and regulations promulgated under those circumstances represent "the product of an exercise of legislative power by an administrative agency, pursuant to a grant of legislative power by the legislative body, and [are] valid and as binding upon a court as a statute," Housing Authority of the County of Chester v. Pennsylvania State Civil Service Commission, 556 Pa. 621, 730 A.2d 935, 942 (1999), provided that the rule meets three requirements.
Guidance documents - Agencies also act in non-legislative capacities. The catch-all term for this branch of administrative law is "guidance documents." Nw. Youth Servs., 66 A.3d at 310. "These come in an abundance of formats with a diversity of names, including guidances, manuals, interpretive memoranda, staff instructions, policy statements, circulars, bulletins, advisories, press releases and others." Id. (internal quotation marks and citation omitted). These acts can serve to bind the public, too, because they dictate how the agency carries out its operations, but they lack the formal notice-and-comment procedures.
Guidance documents are afforded "a lesser quantum of deference[.]" than legislative documents. The lesser degree of deference in the guidance documents domain is attributable to the fact that these rules "may not rest on legislatively-conferred rulemaking powers . . . [and] may depend `upon the willingness of a reviewing court to say that it in fact tracks the meaning of the statute it interprets.'"
Presumption of reasonableness - "Properly-enacted legislative rules enjoy a presumption of reasonableness and are accorded a particularly high measure of deference—often denominated Chevron[[6]] deference—by reviewing courts." Nw. Youth Servs., 66 A.3d at 311. . . . Pennsylvania administrative law principles are rooted in federal precedents. Id. at 313 n.16 (noting that "Pennsylvania decisions in the administrative-law field are so closely grounded upon earlier federal cases"); see also Crown Castle NG E. LLC v. Pa. Pub. Util. Comm'n, 660 Pa. 674, 234 A.3d 665, 686 (2020) (Wecht, J., concurring)("In matters of agency deference, this Court historically has chosen (by volition rather than by command) to take its cues from federal law.") (citations omitted). As noted above, the term "Chevron deference" refers to the United States Supreme Court's seminal decision in Chevron, U.S.A., Inc. v. Natural Resources Defense Council, Inc., 467 U.S. 837, 104 S.Ct. 2778, 81 L.Ed.2d 694 (1984), which stated that federal law had "long recognized that considerable weight should be accorded to an executive department's construction of a statutory scheme it is entrusted to administer[.]" Id. at 844, 104 S.Ct. 2778.
No lockstep with federal admin. law -- This Court has never declared that we follow federal agency law principles in lockstep. Agency issues appear in a dizzying array of contexts and "[a] pervading question in this field, of course, is how much deference is due in any given context." Harmon v. Unemployment Comp. Bd. of Rev., 652 Pa. 23, 207 A.3d 292, 308 (2019) (Saylor, C.J., concurring). Various Justices, including the author of this opinion, have expressed the view that our courts should, if not must, depart from federal law in some circumstances. Id. at 309 . . . .Our Crown Castle decision recognized that this Court has never expressly adopted the federal Chevron approach; instead, 929*929 we have said that Chevron "is indistinguishable from our own approach to agency interpretations of Commonwealth statutes." Crown Castle, 234 A.3d at 679 n.11 (quoting Seeton v. Pa. Game Comm'n, 594 Pa. 563, 937 A.2d 1028, 1037 n.12 (2007)). . . . .As a result, our analysis will draw on federal law for its persuasive value where appropriate.
