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

IN THE SUPREME COURT OF PENNSYLVANIA MIDDLE DISTRICT

THE MARCELLUS SHALE COALITION, : No. 69 MAP 2021 : Appellee : Appeal from the Order of the : Commonwealth Court at No. 573 : MD 2016 dated August 12, 2021. v. : : ARGUED: September 15, 2022 : DEPARTMENT OF ENVIRONMENTAL : PROTECTION OF THE : COMMONWEALTH OF PENNSYLVANIA : AND ENVIRONMENTAL QUALITY BOARD : OF THE COMMONWEALTH OF : PENNSYLVANIA, : : Appellants :

CONCURRING AND DISSENTING OPINION

JUSTICE DOUGHERTY DECIDED: April 19, 2023 I join Parts I-V as well as Part VI(C)(2) of the Opinion of the Court. I agree that the Agencies did not exceed their rulemaking powers by enacting 25 Pa. Code §78a.1, which defines “[o]ther critical communities.” Like Justice Wecht, however, I would assess the rulemaking authority of the Agencies “through ordinary principles of statutory construction[,]” including use of an ejusdem generis analysis. Concurring and Dissenting Opinion at 2 (Wecht, J.). As such, I concur only in the result as to this issue. An ejusdem generis analysis also leads me to agree with Justice Mundy that the Agencies exceeded their rulemaking power by enacting 25 Pa. Code §78a.15(f)(1)(vi), which includes “common areas on a school’s property or a playground” as public resources because “they ‘do not share the same attributes as the other public resources identified in [58 Pa.C.S. §3215(c).]’” Dissenting Opinion at 5-6 (Mundy, J.), quoting Marcellus Shale Coalition v. Dep’t of Environmental Protection, 193 A.3d 447, 481 (Pa. Cmwlth. 2018).

By extension, I would also hold the Agencies exceeded their rulemaking authority by including private owners of such areas in the definition of “[p]ublic resource agency” codified at 25 Pa. Code §78a.1. For these reasons, I concur in part and dissent in part.

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