[J-55-2022] [MO:Donohue, J.]

IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

THE MARCELLUS SHALE COALITION,

Appellee

v.

DEPARTMENT OF ENVIRONMENTAL 

PROTECTION OF THE 

COMMONWEALTH OF PENNSYLVANIA 

AND ENVIRONMENTAL QUALITY BOARD 

OF THE COMMONWEALTH OF 

PENNSYLVANIA,

Appellants

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No. 69 MAP 2021

Appeal from the Order of the 

Commonwealth Court at No. 573 

MD 2016 dated August 12, 2021.

ARGUED: September 15, 2022

CONCURRING AND DISSENTING OPINION

JUSTICE WECHT DECIDED: April 19, 2023

My views of this case align with much of the Lead Opinion’s thoughtful reasoning.

Nonetheless, I am unable to agree with certain analytical choices that it has elected to 

make along the way. Specifically, I disagree with the categorical rejection of ejusdem 

generis. Instead of applying this familiar principle, the Lead Opinion chooses to favor an 

assumption that the General Assembly, in using the term “public resources” in Section 

3215(c) of Act 13,

1 necessarily intended to incorporate all “public natural resources” within 

the meaning of the Environmental Rights Amendment to the Pennsylvania Constitution.

2 

1 58 Pa.C.S. § 3215(c). See Act of February 14, 2012, P.L. 87, No. 13 (“Act 13”).

2 PA. CONST. art. I, § 27 (the “ERA”) (“The people have a right to clean air, pure 

water, and to the preservation of the natural, scenic, historic and esthetic values of the 

environment. Pennsylvania’s public natural resources are the common property of all the 

(continued...)
[J-55-2022] [MO: Donohue, J.] - 2

The scope of legislative rulemaking authority provided to the Department of 

Environmental Protection and the Environmental Quality Board should be assessed 

through ordinary principles of statutory construction and by reference to our existing 

administrative law jurisprudence, rather than through invocation of the ERA.

3 

Additionally, with regard to one sub-issue—the regulatory incorporation of a database 

through which protected species may be added in the absence of formal rulemaking 

procedures—my views align with those expressed by Justice Mundy. Accordingly, I 

concur in part and dissent in part.

In numerous previous decisions, I have expressed my long-held view that judicial 

interpretation of statutes should not be controlled by “deference” to the readings

suggested (much less demanded) by administrative agencies.4 The question presented 

here is of a different shade. Here, we are not so much concerned with the Agencies’

interpretation of Act 13, or any purported need to defer thereto, but rather with the 

substantive validity of properly promulgated “legislative” rules.

5 It is well-established that, 

people, including generations yet to come. As trustee of these resources, the 

Commonwealth shall conserve and maintain them for the benefit of all the people.”).

3 Herein, I refer to the Department of Environmental Protection as “the Department” 

and to the Environmental Quality Board as “the EQB,” and I refer collectively to these 

entities as “the Agencies.”

4 See Woodford v. Ins. Dep’t, 243 A.3d 60, 86-87 (Pa. 2020) (Wecht, J., concurring); 

SEDA-COG Joint Rail Auth. v. Carload Express, Inc., 238 A.3d 1225, 1248-49 (Pa. 2020)

(Wecht, J., concurring); Crown Castle NG E. LLC v. Pa. Pub. Util. Comm’n, 234 A.3d 665, 

686-95 (Pa. 2020) (Wecht, J., concurring); Harmon v. Unemployment Comp. Bd. of Rev., 

207 A.3d 292, 310-11 (Pa. 2019) (Wecht, J., concurring); Cnty. of Butler v. CenturyLink 

Commc’ns, LLC, 207 A.3d 838, 853-54 (Pa. 2019) (Wecht, J., concurring); Snyder Bros., 

Inc. v. Pa. Pub. Util. Comm’n, 198 A.3d 1056, 1083 (Pa. 2018) (Wecht, J., concurring).

5 As this Court has explained:

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, which is, as 

(continued...)
[J-55-2022] [MO: Donohue, J.] - 3

“when an agency adopts a regulation pursuant to its legislative rule-making power . . . it 

is valid and binding upon courts as a statute so long as it is (a) adopted within the agency’s 

granted power, (b) issued pursuant to proper procedure, and (c) reasonable.”6 In my 

previous writings on administrative law matters, I likewise have distinguished the 

application of deference to agencies’ statutory interpretation from “agency rulemaking 

power, which is robust, and which is entitled to a healthy judicial respect.”7 

In the present matter, there is no dispute that the Agencies promulgated the 

challenged regulations pursuant to the proper notice-and-comment procedures 

prescribed by the Commonwealth Documents Law, the Regulatory Review Act, and the 

Commonwealth Attorneys Act.8 Accordingly, the validity of the regulations hinges upon 

a general rule, by way of recourse to procedures prescribed in the 

Commonwealth Documents Law, [45 P.S. §§ 1102-1602; 45 Pa.C.S. 

§§ 501–907,] the Regulatory Review Act, [71 P.S. §§ 745.1-745.14,] and 

the Commonwealth Attorneys Act[, 71 P.S. §§ 732-101-732-506]. When an 

agency acts under the general rule and promulgates published regulations 

through the formal notice, comment, and review procedures prescribed in 

those enactments, its resulting pronouncements are accorded the force of 

law and are thus denominated “legislative rules.”

Nw. Youth Servs., Inc. v. Dep’t of Pub. Welfare, 66 A.3d 301, 310 (Pa 2013).

6 Tire Jockey Serv., Inc. v. Dep’t of Env’t Prot., 915 A.2d 1165, 1186 (Pa. 2007). 

Although this legal standard predates this Court’s decision in Tire Jockey, both the 

Agencies and several of our previous opinions refer to it as the “Tire Jockey test.” I do 

the same herein.

7 Snyder Bros., 198 A.3d at 1083 (Wecht, J., concurring) (citing Bucks Cnty. Servs., 

Inc. v. Phila. Parking Auth., 195 A.3d 218, 242 (Pa. 2018) (Wecht, J. concurring)).

8 As noted by both the Lead Opinion and Justice Mundy, and as discussed further 

below, one facet of the challenge to the regulatory definition of “other critical communities” 

involves a contention that the definition runs afoul of the Commonwealth Documents Law 

by effectively adding substantive material without going through the proper notice-andcomment procedure. But it is undisputed that the definition is contained in a regulation 

that was properly promulgated.
[J-55-2022] [MO: Donohue, J.] - 4

the first and third prongs of the Tire Jockey test—to wit, whether they were “adopted within 

the agency’s granted power” and whether they are “reasonable.”9 

I. Scope of the Agencies’ Granted Power

A central challenge in evaluating the validity of a regulation is determining whether 

its provisions fall “within the agency’s granted power.”10 As the Lead Opinion notes, this 

is the “key question” at the heart of the instant dispute.11 In answering similar questions, 

this Court’s precedents have tended to focus principally upon the existence of an enabling 

statute12 that authorizes or directs an agency to promulgate regulations, in conjunction 

with an analysis of whether the regulations are consistent with the statute that the agency 

seeks to implement. Several of our past cases concerning the validity of legislative 

regulations are instructive.

Pennsylvania Human Relations Commission v. Uniontown Area School District13

concerned the authority of the Pennsylvania Human Relations Commission to promulgate 

a regulation defining “de facto segregation” as used in the Pennsylvania Human Relations 

Act.14 This Court concluded that the agency’s authority derived from its delegated 

legislative, rather than interpretive powers, and that the agency’s enabling statute

evidenced a “legislative intent to empower the Commission to do a good deal more than 

9 Tire Jockey, 915 A.2d at 1186.

10 Id.

11 Lead Op. at 26.

12 An “enabling statute” is “law that permits what was previously prohibited or that 

creates new powers; esp., a congressional statute conferring powers on an executive 

agency to carry out various delegated tasks.” Enabling statute, BLACK’S LAW DICTIONARY

(11th ed. 2019).

13 313 A.2d 156 (Pa. 1973) (plurality).

14 Act of October 27, 1955, P.L. 744, as amended, 43 P.S. §§ 951-63.
[J-55-2022] [MO: Donohue, J.] - 5

merely interpret” the governing statute.15 The agency’s power emanated from the 

statutory language authorizing the agency to “adopt, promulgate and rescind rules and 

regulations to effectuate the policies and provisions of [the] act,” and to “formulate policies 

to effectuate the purposes of [the] act.”16 In light of this language, and because the 

agency’s definition was consistent with the policies expressed in the statute, we upheld 

the regulation “as within the legislative powers conferred” by the General Assembly.17 

In Eagle Environmental II, L.P. v. Department of Environmental Protection,

18 we 

considered, inter alia, whether the EQB was empowered to adopt a “harms/benefits” test 

as part of the permitting process for waste disposal facilities—a test not directly imposed 

by statute. Because the agency’s test was consistent with the purposes of the Solid 

Waste Management Act19 and the Municipal Waste Planning, Recycling and Waste 

Reduction Act,20 we held that the regulation was “authorized by the general grant of 

authority” provided to EQB by the agency’s enabling provisions, which empowered it “to 

establish rules and regulations to accomplish the purposes” of those acts.21 And although 

we subsequently discussed the ERA and the statutes’ reference thereto among their 

statements of purpose, we also made clear that the harms/benefits test “would be within 

15 Uniontown Area Sch. Dist., 313 A.2d at 170.

16 Id.

17 Id.

18 884 A.2d 867 (Pa. 2005).

19 Act of July 7, 1980, P.L. 380, as amended, 35 P.S. §§ 6018.101-6018.1003.

20 Act of July 28, 1988, P.L. 556, as amended, 53 P.S. §§ 4000.101-4000.1904.

21 Eagle Env’t, 884 A.2d at 878 (citing 35 P.S. § 6018.105; 53 P.S. § 4000.302).
[J-55-2022] [MO: Donohue, J.] - 6

the authority granted by the Acts even without reference to implementation of Article 1, 

Section 27.”22 

In Slippery Rock Area School District v. Unemployment Compensation Board of 

Review,

23 this Court considered whether the Department of Labor and Industry could, by 

regulation, define the undefined statutory term “reasonable assurance” that a substitute 

teacher would return to work the following academic year as having been offered a 

position “substantially economically equivalent in terms of wages, benefits, and hours to 

the previous year’s position.”24 In finding that the agency was so authorized, we relied 

primarily upon the statutory enabling language providing that it “shall have power and 

authority to adopt, amend, and rescind such rules and regulations . . . as it deems 

necessary or suitable.”25 This enabling provision indicated that the scope of the agency’s 

authority was “broad and encompasses the delegated legislative power to define by 

regulation terms otherwise undefined by the statute.”26

More recently, in Bucks County Services, this Court addressed a challenge to 

numerous regulations promulgated by the Philadelphia Parking Authority concerning the 

operation of partial rights taxicabs within the City of Philadelphia.27 Although our primary 

focus was upon the “reasonableness” prong of the Tire Jockey test, we noted that the first 

prong—the scope of the agency’s power—was “satisfied because [the agency] is 

22 Id. at 879.

23 983 A.2d 1231 (Pa. 2009).

24 Id. at 1235 n.4 (citing 34 Pa. Code § 65.161).

25 Id. at 1239 (quoting 43 P.S. § 761(a)).

26 Id.

27 See Bucks County Services, 195 A.3d at 233-39.
[J-55-2022] [MO: Donohue, J.] - 7

authorized by [53 Pa.C.S. § 5722] to promulgate regulations relating to taxicab service in 

the City.”28 

In each of these decisions, this Court analyzed the scope of an agency’s authority 

to adopt a given regulation by highlighting the existence of an enabling statute, and by 

further ascertaining whether the regulation was generally consistent with the overarching 

statutory scheme that the agency sought to implement. Although the enabling statutes 

occupied a position of primacy in the analysis, that latter criterion is likewise critical. And 

necessarily, this requires some degree of judicial interpretation of the statutes that the 

agency is charged with administering. As this Court stated in Slippery Rock Area School 

District:

Clearly the legislature would not authorize agencies to adopt binding 

regulations inconsistent with the applicable enabling statutes. See 1 

Pa.C.S. § 1922(1) (“the General Assembly does not intend a result that is 

absurd, impossible of execution or unreasonable”). Indeed, all regulations, 

whether legislative or interpretive “must be consistent with the statute under 

which they were promulgated.” Popowsky v. Pennsylvania Pub. Util. 

Comm’n, 910 A.2d 38, 53 (Pa. 2006).

29

And as the Supreme Court of the United States more recently (and more pithily) put it: 

“Agencies have only those powers given to them by Congress, and ‘enabling legislation’

is generally not an ‘open book to which the agency [may] add pages and change the plot 

line.’”30

A balance must be struck. A court reviewing the validity of regulations necessarily 

must engage in its own statutory interpretation analysis in order to determine whether the

28 Id. at 237.

29 Slippery Rock Area Sch. Dist., 983 A.2d at 1241 (citation modified).

30 W. Virginia v. Env’t Prot. Agency, 142 S. Ct. 2587, 2609 (2022) (quoting Ernest 

Gellhorn & Paul Verkuil, Controlling Chevron-Based Delegations, 20 CARDOZO L. REV.

989, 1011 (1999)).
[J-55-2022] [MO: Donohue, J.] - 8

regulations are “consistent with the statute under which they were promulgated.”31 Yet, 

an agency empowered to implement a statute through its legislative rulemaking 

prerogative must be allowed the flexibility to do so without fear that a court may strike 

down its properly promulgated regulations merely because the court differs with the 

agency on some minor point of statutory interpretation.32 As we previously have 

explained, “substantive rulemaking is a widely used administrative practice, and its use 

should be upheld whenever the statutory delegation can reasonably be construed to 

authorize it.”33 This does not mean that we must afford unqualified “deference” to an 

agency’s statutory interpretation—a jurisprudential shortcut of which I continue to 

disapprove.34 But it does mean that, in conducting our own statutory construction, we 

must maintain a “healthy judicial respect” for the intent of the General Assembly to imbue 

the agency with rulemaking authority, as expressed in the enabling statute.35 In practice, 

when a statute is equally amenable to two constructions—one that would permit the 

agency’s regulation and one that would not—any “deference” to the agency effectively 

should take the form of a “tiebreaker,” rather than any substantive limitation upon the 

court’s duty and prerogative to independently interpret the statute.36

31 Slippery Rock Area Sch. Dist., 983 A.2d at 1241.

32 Accord Tire Jockey, 915 A.2d at 1186 (“To demonstrate that the agency has 

exceeded its administrative authority, ‘it is not enough that the prescribed system of 

accounts shall appear to be unwise or burdensome or inferior to another. Error or lack of 

wisdom in exercising agency power is not equivalent to abuse.’” (quoting Hous. Auth. of 

Cnty. of Chester v. Pa. State Civil Ser. Comm’n, 730 A.2d 935, 942 (Pa. 1999)).

33 Eagle Env’t, 884 A.2d at 877.

34 See supra n.4 and the cases cited therein.

35 Snyder Bros., 198 A.3d at 1083 (Wecht, J., concurring).

36 See id. (Wecht, J., concurring) (“Statutory interpretation is an important part of the 

work that we do. We do not subcontract that interpretive enterprise to administrative 

agencies.”).
[J-55-2022] [MO: Donohue, J.] - 9

Turning to the instant case, as the Lead Opinion details, we are asked to determine 

whether the Agencies were empowered to add certain items to the list of “public 

resources” identified in Section 3215(c) of Act 13,37 and to provide a definition for one of 

the undefined terms in that list. As our previous cases teach, the analysis begins with the 

enabling statute. Section 3274 provides that the “Environmental Quality Board shall 

promulgate regulations to implement this chapter.”38 Unquestionably, this provision

grants the EQB regulatory authority over the chapter in which Section 3215(c) appears.39

Critically, Section 3215(c) provides that the relevant “public resources” include, but 

are not limited to, those identified in the statutory list.40 This is an unambiguous 

37 58 Pa.C.S. § 3215(c).

38 58 Pa.C.S. § 3274.

39 As the Lead Opinion highlights, another subsection of Section 3215 also 

specifically directs the EQB to “develop by regulation criteria” for the Department to utilize 

when “conditioning a well permit based on its impact to the public resources identified 

under subsection (c) and for ensuring optimal development of oil and gas resources and 

respecting property rights of oil and gas owners.” 58 Pa.C.S. § 3215(e)(1); see Lead Op. 

at 29.

40 Although the Lead Opinion twice reproduces the Section 3215(c) list of public 

resources in its Opinion, see Lead Op. at 3-4 & 28 n.10, I likewise include it here for ease 

of reference:

(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.

(continued...)
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expression of the General Assembly’s intent that the list it provided is nonexclusive.

41 

And as Section 3274, the enabling statute, vests in the EQB the authority to promulgate 

regulations to implement Section 3215, it is clear that the EQB is the entity empowered 

to add items, through its rulemaking power, to the nonexclusive statutory list.

This much is uncontroversial, and I discern no basis for disagreement between the 

Lead Opinion and myself up to this point in the analysis. Where I part ways with the Lead 

Opinion is in its identification of “the factor” that it deems “decisive in ascertaining 

legislative intent.”42 The Lead Opinion, echoing a comment made by the Commonwealth 

Court below, concludes that the General Assembly’s reference to “public resources” in 

Section 3215(c) is “rooted in” the ERA.43 Although the Lead Opinion concedes that the 

“ERA’s conception of ‘public resources’ . . . is broad and undefined,”44 and indeed 

suggests that it is “perhaps impossible” to “definitively resolve what would qualify as a 

‘public resource’” under the ERA,45 the Lead Opinion nonetheless finds that the General 

Assembly clearly intended to incorporate into Section 3215(c) all that this (purportedly) 

constitutional phrase is meant to encompass.

(6) Sources used for public drinking supplies in accordance with 

subsection (b).

58 Pa.C.S. § 3215(c)(1)-(6) (emphasis added).

41 See Dep’t of Env’t Prot. v. Cumberland Coal Res., LP, 102 A.3d 962, 976 (Pa. 

2014) (“[I]t is widely accepted that general expressions such as ‘including,’ or ‘including 

but not limited to,’ that precede a specific list of included items are to be considered as 

words of enlargement and not limitation.”).

42 Lead Op. at 31.

43 Id.

44 Id. at 36.

45 Id. at 33.
[J-55-2022] [MO: Donohue, J.] - 11

The principal problem with this rationale is that, despite its repeated invocation of 

“the ERA’s conception of ‘public resources,’”46 the Lead Opinion glosses over the fact 

that the ERA does not, in fact, refer to “public resources.” Rather, the ERA speaks of 

“public natural resources.”47 This reveals an obvious flaw in the Lead Opinion’s 

reasoning. Its attempt to find symmetry between the statute’s use of the phrase “public 

resources” and the ERA’s use of the phrase “public natural resources” fails to account for

the General Assembly’s inclusion of plainly “non-natural” resources within Section 

3215(c). Specifically, among the “public resources” listed in Section 3215(c) are 

“[h]istorical and archaeological sites listed on the Federal or State list of historic places.”48 

To appreciate just how “non-natural” many of the items which fall into this category 

are, one need only consult the National Register of Historic Places, as maintained by the 

National Park Service.49 As just a very small sampling of such historic sites located in 

Pennsylvania, consider whether the following constitute public natural resources within 

the meaning of the Environmental Rights Amendment: the Smithfield Street Bridge in 

Pittsburgh; the Ajax Metal Company Plant in Philadelphia; the Hampden Fire House in 

Reading; the King of Prussia Inn in King of Prussia; the Stegmaier Brewery in WilkesBarre; or the Merion Cricket Club in Haverford. It appears to me that these places are 

not of the sort intended to be protected under the ERA, which speaks of our citizens’ right 

46 Id. at 34, 36, 41.

47 See PA. CONST. art. I, § 27 (emphasis added); supra n.2.

48 58 Pa.C.S. § 3215(c)(5).

49 See National Register of Historic Places, National Register Database and 

Research, https://www.nps.gov/subjects/nationalregister/database-research.htm (last 

visited April 14, 2023).
[J-55-2022] [MO: Donohue, J.] - 12

to “clean air,” “pure water,” and the “natural, scenic, historic and esthetic values of the 

environment.”50 

The Lead Opinion identifies a similar example but does not acknowledge this 

inconsistency. In its effort to demonstrate the error in the Commonwealth Court’s 

conclusion that Section 3215(c) cannot include items of “purely private property,” the Lead 

Opinion points to Fallingwater, Frank Lloyd Wright’s feat of architectural design in Fayette 

County.

51 Because Fallingwater is owned by a private nonprofit conservation 

organization, yet clearly is encompassed within Section 3215(c)(5)’s reference to 

federally listed historic places, the Lead Opinion concludes that items falling within the 

Section 3215(c) list need not be publicly owned.52 I wholly agree. But what the Lead 

Opinion fails to acknowledge is that the inclusion of Fallingwater—an impressive 

manmade structure—just as persuasively demonstrates that items falling within Section 

3215(c) also need not be “natural.”53 Necessarily, then, such items need not be “public 

natural resources” within the meaning of the ERA.54

50 PA. CONST. art. I, § 27. See also Robinson Township v. Commonwealth, 83 A.3d 

901, 955 (Pa. 2013) (plurality) (stating that the ERA’s “concept of public natural resources 

includes not only state-owned lands, waterways, and mineral reserves, but also resources 

that implicate the public interest, such as ambient air, surface and ground water, wild 

flora, and fauna”).

51 Lead Op. at 34.

52 Id. (concluding that the Section 3215(c) list “does not neatly break down into ‘purely 

private’ and ‘purely public’ categories”).

53 The Lead Opinion expresses shock that I might suggest that Fallingwater is not a 

“natural resource” within the meaning of the ERA. Id. at 35-36. Heretic though I may be, 

it cannot escape my notice that Fallingwater is a house. It is a beautiful house, indeed, 

but scenic beauty does not transform a house into a “natural resource.”

54 The Lead Opinion contends that the constitutional meaning of “public natural 

resources” is not “cabined by natural or man-made categories.” Id. at 35. It is puzzling, 

to say the least, to suggest that “natural resources” need not be “natural.”
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Put simply, equating Section 3215(c) with the ERA is underinclusive. It fails to 

explain the General Assembly’s inclusion of items within Section 3215(c) that would not 

fall within the ERA.55 Although the Lead Opinion refers to the “ERA’s conception of ‘public 

resources’” (omitting the word “natural”) as “embracing ‘broadly defined values of the 

environment,’” and stresses that those include “historic and esthetic values,”56 I doubt 

that anyone would believe that such values of the environment, however broadly defined, 

would encompass a steel truss bridge, a metal plant, or a country club. Yet, as 

demonstrated above, these and many more such “non-natural” structures nonetheless 

fall within Section 3215(c)(5).

After stuffing Section 3215(c) into the ERA’s ill-fitting clothes, the Lead Opinion 

takes the next major analytical step with which I differ. It declares that the statutory 

construction doctrine of ejusdem generis “plays no role in the statutory analysis.”57 This 

follows from its previous conclusion, the Lead Opinion explains, because the term “‘public 

resources’ already has a defined meaning within the statutory framework of the Oil and 

Gas Act: public resources as understood by the ERA.”58, 59 The Lead Opinion jettisons 

55 To be clear, I do not, as the Lead Opinion surmises, suggest that the ERA has 

absolutely nothing to do with the items listed in Section 3215(c). See id. I recognize that 

protection of natural resources “secured by the Constitution of Pennsylvania” is one of 

the legislative purposes specified in Act 13. 58 Pa.C.S. § 3202(4). Where I differ with 

the Lead Opinion is that I merely recognize that Section 3215(c) is broader than the ERA, 

because it clearly contains items that are not, in any sense, natural resources.

56 Lead Op. at 34 (quoting Robinson Twp. 83 A.3d at 951).

57 Id. at 39. 

58 Id. at 40.

59 Even under the Lead Opinion’s account of Section 3215(c) and the ERA, the utility 

of its approach is questionable given its acknowledgment that the constitutional term 

“public . . . resources” is “broad and undefined” and perhaps incapable of comprehensive 

definition. PA. CONST. art. I, § 27; Lead Op. at 33, 36. If the constitutional standard is too 

broad to effectively define, then query what is gained by incorporating this purportedly 

“defined meaning” into Section 3215(c). Lead Op. at 40.
[J-55-2022] [MO: Donohue, J.] - 14

the ordinary tools of statutory interpretation in favor of the importation of a constitutional 

standard that, as I have explained above, fails to account for all of the items listed in 

Section 3215(c).

I would not be so quick to discard ejusdem generis. It is true that we have held 

that the doctrine “must yield in any instance in which its effect would be to confine the 

operation of a statute within narrower limits than those intended by the General Assembly 

when it was enacted.”60 This caveat is well-taken; however, we must remember that 

doctrines such as ejusdem generis are merely tools that we employ to ascertain 

legislative intent in the first place.61 And as many of our precedents indicate, ejusdem 

generis is the preferred tool when we seek to determine whether a given item may be 

added to an “including but not limited to” list, like the one found in Section 3215(c).62, 63

The Lead Opinion states that Section 3215(c) contains “six specific items that do 

not share any obvious commonalities.”64 Although this is perhaps true if one seeks to 

60 Friends of Danny DeVito v. Wolf, 227 A.3d 872, 889 (Pa. 2020).

61 Id. (describing ejusdem generis as a “useful tool of statutory construction” which is 

“used for the sole purpose of determining the intent of the General Assembly”).

62 See Cumberland Coal Res., 102 A.3d at 976.

63 In its effort to reject ejusdem generis, the Lead Opinion makes an additional 

comment that could prove perilous for future cases, and from which I must distance 

myself. It cites Cumberland Coal Resources for the proposition that ejusdem generis 

applies to “definitional” sections, and rejects its use here because “[t]his is not a situation 

where Section 3215(c) can plausibly be interpreted as a definitional section . . . .” Lead

Op. at 40. But the application of ejusdem generis, to my knowledge, has never been 

limited strictly to statutory language that defines a term. Rather, the doctrine applies 

“where general words follow the enumeration of particular classes of persons or things,” 

such that additional items must be “of the same general nature or class as those 

enumerated.” McClellan v. Health Maint. Org. of Pennsylvania, 686 A.2d 801, 806 (Pa. 

1996). Such “enumeration” need not be in the form of a definition, and the Lead Opinion’s

suggestion of the contrary poses a risk of introducing substantial confusion into our 

statutory construction jurisprudence. 

64 Lead Op. at 33.
[J-55-2022] [MO: Donohue, J.] - 15

find one single commonality that all six items share, I do not view this as precluding an 

ejusdem generis analysis. It is true that the items listed in Section 3215(c) defy universal 

categorization as “public” or “private,” as the Lead Opinion aptly explains. And as I have 

shown above, they likewise cannot all be understood to be “natural resources” within the 

meaning of the ERA. But the doctrine of ejusdem generis expressly instructs us to view 

the statutory enumeration with a level of generality—that we must consider the “general 

nature or class” of the items enumerated.65 As our Superior Court explained well over a 

century ago:

But in applying this principle of construction, and in determining what things 

are ejusdem generis, regard must be had to the general subject to which 

the act relates. Things which plainly belong to the same class when one 

subject is being considered might belong to an entirely different class when 

considered with reference to another subject. The rule would be absurd if 

under the head “other” no thing can be included in the construction of the 

act which is not exactly the same in every particular as the thing specified. 

Nor has it been so applied.66

Moreover, I have found no precedent indicating that a court applying ejusdem generis 

necessarily must reduce a statutory list to a single commonality. Indeed, to do so may, 

in some circumstances, obscure the General Assembly’s true intent by prioritizing 

superficial similarities over meaningful classifications. There is no requirement that the

General Assembly confine its legislative efforts to precisely one category or class per 

statutory list. It follows that, where the statutory language so suggests, a court 

undertaking an ejusdem generis analysis may recognize that a statutory enumeration 

contains multiple classes of items, and may determine whether additional items are 

permissible by ascertaining whether they fall within one of the enumerated categories, 

65 Cumberland Coal Res., 102 A.3d at 976; McClellan, 686 A.2d at 806.

66 Weiss v. Swift & Co., 36 Pa. Super. 376, 386-87 (Pa. Super. 1908).
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i.e., that they are “similar to those listed by the legislature and of the same general class 

or nature.”67 

This brings me to the challenged definitions contained within the regulations at 

issue. The Marcellus Shale Coalition (“MSC”) challenged: the Agencies’ inclusion of 

“common areas on a school’s property” and “playgrounds” as “public resources”; the 

Agencies’ definition of the statutory term “other critical communities”; and the Agencies’

definition of “public resource agencies” as including “municipalities” and “playground 

owners.”68 As the Lead Opinion explains, these definitions are a part of the Agencies’

regulatory scheme for implementing Section 3215(c). Under the regulations, an applicant 

proposing to drill an unconventional gas well within a specified distance of one of the 

listed “public resources” is obligated to provide notice to the “public resource agency” 

responsible for managing that public resource, as well as to the Department, which will 

consider, inter alia, the comments and recommendations of the “public resource agency” 

in connection with the application.69 

As it concerns the definition that the Agencies provided for “other critical 

communities,”70 as that term appears in Section 3215(c)(4), the question of the Agencies’

67 Cumberland Coal Res., 102 A.3d at 976.

68 See 25 Pa. Code §§ 78a.1, 78a.15(f)-(g).

69 See 25 Pa. Code § 78a.15(f)-(g).

70 The regulatory definition of “other critical communities” is:

Other critical communities --

(i) Species of special concern identified on a [Pennsylvania National 

Diversity (“PNDI”)] receipt, including plant or animal species:

(A) In a proposed status categorized as proposed endangered, 

proposed threatened, proposed rare or candidate.

(B) That are classified as rare or tentatively undetermined.

(continued...)
[J-55-2022] [MO: Donohue, J.] - 17

statutory authority is straightforward. This is a term that the General Assembly included 

within Section 3215(c), but did not define. As highlighted above, Section 3274 gives the 

EQB authority to promulgate regulations to implement, inter alia, Section 3215(c).71 This 

enabling provision is “broad and encompasses the delegated legislative power to define 

by regulation terms otherwise undefined by the statute.”72 Plainly, providing a definition 

for such an undefined term is “within the agency’s granted power.”73 

With regard to “common areas of a school’s property” and “playgrounds,” my views 

substantially align with the thoughtful Concurring and Dissenting Opinion authored in a 

previous iteration of this case, where this Court upheld a preliminary injunction that the 

Commonwealth Court issued to enjoin the challenged portions of the regulations.74 

Importantly, the regulations define both “common areas of a school’s property” and 

“playgrounds” such that only areas which are open to the “general public for recreational 

purposes” are included.75 As discussed above, our task is, at least in part, to determine 

whether these items are consistent with the “public resources” listed in Section 3215(c). 

By ejusdem generis, we may conclude that “common areas of a school’s property” and 

“playgrounds” are of the same general nature or class as at least one of the items listed 

(ii) The term does not include threatened and endangered species.

25 Pa. Code § 78a.1.

71 58 Pa.C.S. § 3274.

72 Slippery Rock Area Sch. Dist., 983 A.2d at 1239.

73 Tire Jockey, 915 A.2d at 1186.

74 See Marcellus Shale Coal. v. Dep’t of Env’t Prot., 185 A.3d 985, 1009-11 (Pa. 

2018) (MSC II) (Donohue, J., concurring and dissenting).

75 See 25 Pa. Code § 78a.1 (defining “common areas of a school’s property,” in 

relevant part, as “[a]n area on a school’s property accessible to the general public for 

recreational purposes”); id. (defining “playground,” in relevant part, as “[a]n outdoor area 

provided to the general public for recreational purposes”).
[J-55-2022] [MO: Donohue, J.] - 18

in Section 3215(c)—that of “publicly owned parks.”76 As the minority opinion cogently 

explained in MSC II, these “resources share common characteristics, as the general 

public utilizes them in precisely the same way (for recreation).”77 To this I would add that 

other places listed in Section 3215(c) are commonly used by the public for recreation as 

well, namely publicly owned “forests,” “game lands,” and “scenic rivers,” which the public 

uses for outdoor recreational activities such as hiking, camping, hunting, fishing, and 

boating.

78 Accordingly, inclusion of additional outdoor public recreational spaces falls 

within the Agencies’ granted power to expand upon the nonexclusive list provided in 

Section 3215(c), as signaled through the phrase “including, but not limited to.”79

And finally, the Agencies possessed the power to define a “public resource 

agency” as including “playground owners” and “municipalities.”80 As the Lead Opinion 

explains, the conclusion that the Agencies were authorized to include “playground 

owners” within the definition of a “public resource agency” follows from the determination 

that the Agencies were authorized to define “playgrounds” as “public resources.”81 With 

76 58 Pa.C.S. § 3215(c)(1).

77 MSC II, 185 A.3d at 1009 (Donohue, J., concurring and dissenting).

78 See 58 Pa.C.S. § 3215(c)(1) (including publicly owned “forests” and “game lands”); 

id. § 3215(c)(2) (including “National or State scenic rivers”).

79 58 Pa.C.S. § 3215(c).

80 See 25 Pa. Code § 78a.1 (defining “public resource agency” as “[a]n entity 

responsible for managing a public resource identified in § 78a.15(d) or (f)(1) (relating to 

application requirements) including the Department of Conservation and Natural 

Resources, the Fish and Boat Commission, the Game Commission, the United States 

Fish and Wildlife Service, the United States National Park Service, the United States 

Army Corps of Engineers, the United States Forest Service, counties, municipalities and 

playground owners.”) (emphasis added).

81 See Lead Op. at 59 (“[O]ur determination that a ‘playground’ is a valid public 

resource effectively resolves this legal challenge because the ‘owner’ of that resource is 

responsible for it.”).
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regard to the inclusion of “municipalities,” MSC’s argument goes that, because this Court 

in Robinson Township struck down Section 3215(d),

82 which stated that the Department 

“may” consider the comments of municipalities in connection with a well permit (because 

such consideration was facially optional rather than mandatory), the regulation’s provision 

mandating such consideration now lacks statutory authority. But the Agencies’ power to 

promulgate binding regulations does not emanate from that now-invalidated subsection. 

Rather, the Agencies’ power derives from the enabling provision, Section 3274. It is 

undisputed that the Agencies had the power to define “public resource agencies” to 

include, e.g., the Department of Conservation and Natural Resources, the Fish and Boat 

Commission, the Game Commission, the United States Fish and Wildlife Service, etc.83 

The Agencies’ authority to include these entities in the definition of a “public resource 

agency” follows from their general authority to implement the statute, which calls upon 

the Department to “consider the impact of the proposed well on public resources.”84 

Soliciting the comments of these entities is merely the mechanism by which the Agencies 

seek to comply with this mandate. And just as the Agencies are empowered by the 

general grant of rulemaking authority to include the above-listed entities in the definition 

82 Section 3215(d) provided:

(d) Consideration of municipality and storage operator comments.--

The department may consider the comments submitted under section 

3212.1 (relating to comments by municipalities and storage operators) in 

making a determination on a well permit. Notwithstanding any other law, no 

municipality or storage operator shall have a right of appeal or other form of 

review from the department’s decision.

58 Pa.C.S. § 3215(d) (emphasis added). This subsection was held unconstitutional under 

the ERA in Robinson Township. See Robinson Twp., 83 A.3d at 984.

83 See 25 Pa. Code § 78a.1.

84 58 Pa.C.S. § 3215(c). 
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of “public resource agencies,” so too are they empowered to include “municipalities.” The 

now-invalid Section 3215(d) effectively is irrelevant to the issue of the Agencies’ authority.

For these reasons, I conclude that all of the challenged definitions were “adopted 

within the agency’s granted power,” and thus satisfy the first prong of the Tire Jockey 

test.85 All that remains is the final prong—whether those definitions are “reasonable.”86

II. Reasonableness

Our test for the validity of a legislative rule frames the “reasonableness” inquiry in 

highly deferential terms:

In deciding whether an agency action, such as promulgation of a legislative 

regulation, is reasonable, we are not at liberty to substitute [our] own 

discretion for that of administrative officers who have kept within the bounds 

of their administrative powers. To show that these have been exceeded in 

the field of action involved, it is not enough that [the agency’s regulation] 

shall appear to be unwise or burdensome or inferior to another. Error or 

unwisdom is not equivalent to abuse. What has been ordered must appear 

to be so entirely at odds with fundamental principles as to be the expression 

of a whim rather than an exercise of judgment.87

We have added that, “[r]egarding the reasonableness prong, ‘appellate courts accord 

deference to agencies and reverse agency determinations only if they were made in bad 

faith or if they constituted a manifest or flagrant abuse of discretion or a purely arbitrary 

execution of the agency’s duties or functions.”88

This standard appears to me to be more exacting than a mere inquiry into 

“reasonableness,” and may be more accurately characterized as a test for “irrational” 

85 Tire Jockey, 915 A.2d at 1186.

86 Id.

87 Slippery Rock Area Sch. Dist., 983 A.2d at 1242 (quoting Uniontown Area Sch. 

Dist., 313 A.2d at 169).

88 Tire Jockey, 915 A.2d at 1186 (quoting Rohrbaugh v. Pennsylvania Pub. Util. 

Comm’n, 727 A.2d 1080, 1085 (Pa. 1999)).
[J-55-2022] [MO: Donohue, J.] - 21

agency action. “Reasonable” minds may sometimes differ as to whether a given action 

is “reasonable” under the circumstances. In asking instead whether a regulation is based 

upon a “whim,” or “purely arbitrary,” or “entirely at odds with fundamental principles,” we 

seem to be asking for something more. Indeed, these characterizations echo the 

“arbitrary and capricious” standard by which the federal courts assess agency action, 

which contains a component of “rational connection” between an agency’s choice and the 

facts upon which it is based.89

I find no indication that the challenged definitions reflect an expression of the 

Agencies’ “whim,” constitute a “flagrant abuse of discretion,” are “purely arbitrary,” or may 

be deemed “entirely at odds with fundamental principles.” In this regard, my views align 

substantially with the reasoning offered by the Lead Opinion.

90 Much of MSC’s 

arguments on this prong reduce to an assertion that it will be onerous to comply with the 

notice requirements established by the regulations. As the above-quoted standard makes 

abundantly clear, however, the mere fact that a regulation may impose a burden does not 

render it “unreasonable” for purposes of the Tire Jockey test.

III. The PNDI Problem

As noted above, I agree with the Lead Opinion that it was within the Agencies’ 

granted authority to provide a definition for the undefined statutory term “other critical 

communities.” But I also agree with Justice Mundy that the definition chosen is 

89 See Motor Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 

U.S. 29, 43 (1983) (“The scope of review under the ‘arbitrary and capricious’ standard is 

narrow and a court is not to substitute its judgment for that of the agency. Nevertheless, 

the agency must examine the relevant data and articulate a satisfactory explanation for 

its action including a ‘rational connection between the facts found and the choice made.’” 

(quoting Burlington Truck Lines v. United States, 371 U.S. 156, 168 (1962)).

90 See Lead Op. at 56-58.
[J-55-2022] [MO: Donohue, J.] - 22

problematic.91 I quoted the definition in full above.

92 The offending portion defines “other 

critical communities” to include: “Species of special concern identified on a PNDI

receipt . . . .”93 The PNDI—the Pennsylvania Natural Diversity Inventory—is a database 

that other agencies use to list plant and animal species classified as threatened,

endangered, or otherwise warranting special consideration or protection (“other critical 

communities,” as the Agencies use the term).94

As MSC, the Commonwealth Court, and Justice Mundy explain, the defect in the 

procedure that the regulation envisions is that species can be added to or subtracted from 

the PNDI by entities other than the Agencies, without going through the formal noticeand-comment rulemaking process. By defining the term “other critical communities” to 

include “whatever the PNDI says,” the Agencies have adopted what is, in effect, a method 

of backdoor regulating by which entries into a database are given the force of law without 

meeting the requirements necessary to become lawful regulations.

91 See Diss. Op. at 6-8 (Mundy, J.)

92 See supra n.70.

93 25 Pa. Code § 78a.1.

94 The regulation defines “PNDI” as:

The Pennsylvania Natural Heritage Program's database containing data 

identifying and describing this Commonwealth's ecological information, 

including plant and animal species classified as threatened and endangered 

as well as other critical communities provided by the Department of 

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

Game Commission and the United States Fish and Wildlife Service. The 

database informs the online environmental review tool. The database 

contains only those known occurrences of threatened and endangered 

species and other critical communities, and is a component of the 

Pennsylvania Conservation Explorer.

25 Pa. Code § 78a.1. A PNDI receipt is defined as: “The results generated by the 

Pennsylvania Natural Diversity Inventory Environmental Review Tool containing 

information regarding threatened and endangered species and other critical 

communities.” Id.
[J-55-2022] [MO: Donohue, J.] - 23

Although it implicates a distinct legal doctrine, the challenged definition is 

reminiscent of the problem that we confronted in Protz v. Workers’ Compensation Appeal 

Board (Derry Area School District).

95 There, we concluded that the statutory incorporation 

of the “most recent addition” of the American Medical Association’s Guides to the 

Evaluation of Permanent Impairment, which was to be used to determine an injured 

employee’s degree of impairment for purposes of workers’ compensation, was a violation 

of the non-delegation doctrine because it outsourced the General Assembly’s policymaking responsibility to the future discretion of another entity.96 By adopting future 

editions of the Guides without knowing what they would even contain, the General 

Assembly allowed another entity to make the essential policy choices and, in effect, to 

write the law of this Commonwealth. Importantly, we clarified that “the non-delegation 

doctrine does not prevent the General Assembly from adopting as its own a particular set 

of standards which already are in existence at the time of adoption.”97 But it does prohibit 

the legislature from “incorporating, sight unseen, subsequent modifications to such 

standards without also providing adequate criteria to guide and restrain the exercise of 

the delegated authority.”98

The issue before us here differs inasmuch as it concerns not the General 

Assembly’s delegation of its lawmaking authority, but rather the Agencies’ delegation of 

its rulemaking prerogative. The theory behind MSC’s challenge, moreover, is not nondelegation, but rather an asserted violation of the procedural requirements for 

promulgating regulations. But a Protz analogy remains instructive. The definition of 

95 161 A.3d 827 (Pa. 2017).

96 Id. at 833-38.

97 Id. at 838.

98 Id. at 839.
[J-55-2022] [MO: Donohue, J.] - 24

“other critical communities” essentially represents a delegation of a delegation. The 

General Assembly delegated rulemaking power to the Agencies. The Agencies 

delegated that power to the PNDI database. In the language of Protz, the Agencies are 

“incorporating, sight unseen, subsequent modifications” to the PNDI database.99 And,

more to MSC’s point, they are doing so without attending to the procedural requirements, 

prospectively transforming “each revision of the special concern species listed in the 

PNDI database [into] an unlawful amendment to the Chapter 78a regulation.”100

The Agencies’ rejoinder, which the Lead Opinion essentially adopts, is that 

although the PNDI database may vary over time and the results of its consultation may 

differ with respect to different sites, the process of using the PNDI database remains 

constant.101 Thus, their argument goes, only that process needed to be formally 

promulgated. But this is not responsive to MSC’s point. When any given species is added 

to the PNDI database as a species of special concern, the regulation imposes binding 

requirements upon applicants with respect to that species, notwithstanding the fact that 

the addition was not subject to notice-and-comment rulemaking.

IV. Conclusion

In light of the foregoing, although I differ with much of the Lead Opinion’s rationale, 

I nonetheless agree with its decision to reverse the order of the Commonwealth Court

with regard to all but one of the challenged definitions. As it concerns the definition of 

99 Id.

100 MSC’s Br. at 51.

101 See Agencies’ Br. at 42 (“The process set forth in subsection 78a.15(f) requiring 

use of the PNDI tool is not ‘ever-changing.’ It is static.”) (emphasis in original); Lead Op. 

at 45 (“[T]he Agencies gave appropriate public notice of the manner in which species of 

special concern were to be identified for purposes of information gathering in the prepermitting stages of unconventional oil and gas wells. While the PNDI receipt information 

may vary by site and over time, the basis for inclusion in the statutorily mandated 

database does not.”).
[J-55-2022] [MO: Donohue, J.] - 25

“other critical communities” and its incorporation of the PNDI database, I find a fatal 

procedural defect, and I would thus affirm the Commonwealth’s Court’s decision on that 

narrow point.

I thus respectfully concur in part and dissent in part.