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April 2, 2026 Get Citation Alerts Download PDF Add Note

D. Scott & L.M. Scott v. DEP & Rice Drilling B LLC (EHB)

Commonwealth Court of Pennsylvania

• Citations: None known
• Docket Number: 672 C.D. 2024

• Judges: Wallace

• Opinion

• Authorities (23)

• Cited By (0)

• Summaries (0)

• Similar Cases (1.8K)

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Lead Opinion

                        by Wallace

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Douglas Scott and :
Linda Marie Scott, :
Petitioners :
:
v. : No. 672 C.D. 2024
: Argued: November 5, 2025
Department of Environmental :
Protection and Rice Drilling B LLC :
(Environmental Hearing Board), :
Respondents :

BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
HONORABLE MATTHEW S. WOLF, Judge

OPINION
BY JUDGE WALLACE FILED: April 2, 2026

In this matter, Douglas Scott and Linda Marie Scott (collectively, the Scotts)
petition for review of the order of the Environmental Hearing Board (Board), dated
April 29, 2024. The Board concluded in its order, among other things, that the
Department of Environmental Protection (DEP) had not perpetrated an
unconstitutional “taking” by granting permits to Rice Drilling B LLC (Rice) to drill
oil and gas wells through the Scotts’ coal seams.1 After careful review, we affirm.
BACKGROUND
The Scotts are the owners of two parcels of land (Property) in Greene County.
Reproduced Record (R.R.) at 2157a. The Scotts’ ownership interest includes oil and
gas rights for the Property and coal rights “except for the Pittsburgh coal seam which
had been previously severed.” Id. The Scotts’ predecessors-in-interest entered into
an oil and gas lease for the Property with Peoples Natural Gas Company in 1917. Id.
Douglas Scott purchased the Property in 2002 and entered into an amendment and
ratification of the lease in 2013. Id. EQT Production Company (EQT) later became
the lessee under the oil and gas lease and engaged in litigation against the Scotts. Id.
EQT and the Scotts reached a settlement agreement in 2019, providing that the Scotts
would allow EQT to enter the Property and build a well pad, and that EQT would pay
the Scotts $260,000. Id. In addition, the Scotts entered into another amendment and
ratification of the oil and gas lease and executed a “Coal Owner Permission to Drill,”
granting permission to Rice, EQT’s subsidiary, to drill wells at 14 specified locations
on the Property. Id. at 2157a-58a. Rice initially drilled six wells. Id. at 2158a.
In 2022, Rice applied for permits from the DEP to drill an additional five wells
on the Property. R.R. at 2158a. The planned locations for the additional wells were
within 1,000 feet of an existing well and would require drilling through coal seams
that the Scotts owned. Id. The Scotts objected, purporting to revoke the Coal Owner
Permission to Drill, and arguing Rice could not drill the wells without their consent

1
The Fifth Amendment to the United States Constitution provides that private property may not
be “taken for public use, without just compensation.” U.S. Const. amend. V. Additionally, article
I, section 10 of the Pennsylvania Constitution provides that private property may not “be taken or
applied to public use, without authority of law and without just compensation being first made or
secured.” Pa. Const. art. 1, § 10.

2
under Section 7(a)(1), and (b) of the Coal and Gas Resource Coordination Act (Act),2
which provides:

(a) No permit for a gas well covered by this act may be issued to drill a
new gas well, or reopen a gas well which has been plugged . . . unless
the proposed gas well is located not less than 1,000 feet from any other
well. For the purpose of this section, “other well” shall not include any:

(1) Oil or gas well or injection well which does not
penetrate a workable coal seam.

....

(b) The [DEP] shall, upon request of the permit applicant or the owner
of the workable coal seam which underlies the proposed gas well, grant
an exception from the minimum 1,000 feet distance requirement of
subsection (a), where the permit applicant and the owner of the
workable coal seam consent in writing.

58 P.S. § 507(a)(1), (b).3
The parties submitted information to the DEP, which determined the relevant
coal seams were not “workable.” R.R. at 2159a. Thus, the DEP concluded Rice did
not require the Scotts’ consent and granted permits for the additional wells. Id. The
Scotts appealed the permits to the Board. Id. However, the Scotts did not request a
supersedeas, and Rice drilled the additional wells, which purportedly resulted in the

2
Act of December 18, 1984, P.L. 1069, as amended.

3
The Act defines a “workable coal seam” to include:

(1) A coal seam in fact being mined in the area in question under this [A]ct by
underground methods.

(2) A coal seam which, in the judgment of the [DEP], can reasonably be expected
to be mined by underground methods.

Section 2 of the Act, 58 P.S. § 502.

3
“sterilization of approximately 72,139 tons of coal.” Id. at 2159a-60a. Rice filed a
motion to dismiss, contending the Scotts’ appeal was moot because it already drilled
the wells. Id. at 2159a. The Board denied the motion, reasoning the Scotts presented
a takings claim in their notice of appeal that was not subject to dismissal on mootness
grounds. Id.
The Scotts, Rice, and the DEP filed motions for summary judgment. By order
dated April 29, 2024, the Board granted summary judgment against the Scotts. The
Board reasoned the Scotts had failed to establish a takings claim, even assuming the
coal was workable and their consent was required under the Act. R.R. at 2160a. The
Board explained the Scotts’ coal was not taken for the “public benefit,” nor had they
“been forced to bear any burdens that should in all fairness and justice be borne by
the public.” Id. at 2162a-66a. To the contrary, the DEP granted permits to a private
party, Rice, authorizing it to drill oil and gas wells in accordance with the law. Id.
The Board reasoned that although the Scotts might disagree with the DEP’s decision
to grant permits to Rice and its determination that their coal was unworkable, there
was “no basis for their claim that the [DEP] has ‘taken’ their coal.” Id. at 2162a. The
Board expressed concern that concluding otherwise could have severe public policy
consequences and subject the DEP to a takings claim each time its permitting actions
involved a private property dispute. Id. at 2165a-66a.
The Board went on to discuss the Scotts’ contention that the DEP’s permitting
decision and its decision that the coal was unworkable were arbitrary and capricious,
contrary to the law and the evidence, and resulted in a deprivation of the Scotts’ right
to due process. R.R. at 2169a. The Board explained the Scotts received due process
in that they had notice and the opportunity to be heard during the permitting process
and had the opportunity to appeal the DEP’s permitting decision. Id. at 2170a. The

4
Board concluded the Scotts’ claim regarding the DEP’s workability determination
was moot because Rice had already drilled the wells, and the Board could not grant
damages or other relief to the Scotts. Id. at 2170a-71a. The Board found no merit to
the Scotts’ contentions that determining their coal was workable would affect Rice’s
statutory obligations, that the Board could “halt Rice’s operations” while the parties
resolved their dispute, and that the circumstances of this case fell within an exception
to the mootness doctrine. Id. at 2171a-73a.
The Scotts filed a petition for review in this Court. The Scotts argue the DEP’s
permitting decision was a regulatory taking under the federal and state Constitutions,
in that it resulted in a “physical invasion” of their Property and denied them the only
economically viable use of their coal. Scotts’ Br. at 23-29. The Scotts challenge the
Board’s rationale that the DEP’s decision was not for the “public benefit” and, in the
alternative, contend no public benefit was necessary for a taking to occur. Id. at 29-
35. In addition, the Scotts argue it was unnecessary for the DEP’s decision to convey
property rights for a taking to occur. Id. at 35-37. They contend the DEP’s decision
was arbitrary and capricious and dispute the Board’s reasoning that any challenge to
the DEP’s workability determination is moot.4 Id. at 37-45.
DISCUSSION
When the Board grants summary judgment, this Court reviews whether “there
has been an error of law or a manifest abuse of discretion.” Chesapeake Appalachia,
L.L.C. v. Dep’t of Env’t Prot., 89 A.3d 724, 726 n.2 (Pa. Cmwlth. 2014). The Board
should grant summary judgment when “there is no genuine issue of material fact and

4
The Scotts also allege a violation of their right to due process, but they do not develop this issue
separately from their claim that the DEP’s decision was arbitrary and capricious. See Scotts’ Reply
Br. at 4 (arguing “arbitrary and capricious administrative action in itself constitutes a deprivation
of due process”).

5
. . . the moving party is entitled to judgment as a matter of law.” Id. Regarding the
Scotts’ takings claim, constitutional matters present a question of law for which our
standard of review is de novo and our scope of review is plenary. Hufnagle v. Dep’t
of Transp., Bureau of Motor Vehicles, 343 A.3d 388, 395 n.6 (Pa. Cmwlth. 2025).
This means we show no deference to the Board, and we may review the entire record
in reaching our decision. See Mercury Trucking, Inc. v. Pa. Pub. Util. Comm’n, 55
A.3d 1056, 1082 (Pa. 2012).
Regulatory Taking
As we noted above, the United States and Pennsylvania Constitutions prohibit
the government from taking private property for public use without just
compensation. See U.S. Const. amend. V; Pa. Const. art. 1, § 10. Our Supreme
Court “continually turn[s] to federal precedent for guidance in its ‘taking’
jurisprudence, and indeed has adopted the analysis used by the federal courts.” City
of Pittsburgh v. Weinberg, 676 A.2d 207, 210-12 (Pa. 1996) (quoting United Artists’
Theater Cir. v. City of Philadelphia, 635 A.2d 612, 616 (Pa. 1993)). Thus, our
analysis of the Scotts’ takings claim is the same under both Constitutions. See Pa.
Workers’ Comp. Judges Pro. Ass’n v. Exec. Bd. of Commonwealth, 39 A.3d 486,
496 (Pa. Cmwlth. 2012).
The Scotts first contend they suffered a regulatory taking under Lucas v. South
Carolina Coastal Council, 505 U.S. 1003 (1992). The United States Supreme Court
in Lucas identified two types of government regulations that will result in a taking,
including “regulations that compel the property owner to suffer a physical ‘invasion’
of his property” and regulations that deny “all economically beneficial or productive

6
use of land.”5 Id. at 1016. The Scotts argue they suffered a physical invasion of their
property because the DEP’s permits allowed Rice to drill through and sterilize their
coal. Scotts’ Br. at 23-24. In addition, the Scotts argue the DEP’s permits deprived
them “of the only economically viable use of the coal.” Id. at 24.
The Scotts next contend they suffered a regulatory taking under a “traditional
takings” analysis, which governs where “a regulation places limitations on land that
fall short of eliminating all economically beneficial use.” Machipongo Land & Coal
Co., Inc. v. Dep’t of Env’t Prot., 799 A.2d 751, 765 (Pa. 2002) (quoting Palazzolo v.
Rhode Island, 533 U.S. 606, 617 (2001)). A “traditional taking” depends on various
factors, “including (1) the economic impact of the regulation on the claimant; (2) the
extent to which the regulation has interfered with distinct investment-backed
expectations; and (3) the character of the governmental action.” Murr v. Wisconsin,
582 U.S. 383, 393 (2017). The Scotts argue once again that the DEP’s permitting
decision caused the “physical intrusion” and sterilization of their coal, which denied
them any future use of the coal.6 Scotts’ Br. at 28.
Initially, the DEP’s permitting decision in this case did not cause the purported
sterilization of the Scotts’ coal or otherwise constitute a “physical ‘invasion’” of the

5
As the Supreme Court later summarized, Lucas “included a caveat recognizing the relevance of
state law and land-use customs: The complete deprivation of use will not require compensation if
the challenged limitations ‘inhere . . . in the restrictions that background principles of the State’s
law of property and nuisance already placed upon land ownership.’” Murr v. Wisconsin, 582 U.S.
383, 393-94 (2017) (quoting Lucas, 505 U.S. at 1029) (alteration in original).

6
Notably, a government permitting decision may constitute a taking under certain circumstances.
See, e.g., United States v. Riverside Bayview Homes, Inc., 474 U.S. 121, 127 (1985) (explaining
that “[o]nly when a permit is denied and the effect of the denial is to prevent ‘economically viable’
use of the land in question can it be said that a taking has occurred”); Sheetz v. County of El
Dorado, 601 U.S. 267, 275-76 (2024) (explaining that granting a land-use permit with conditions
that lack any “essential nexus to the government’s land-use interest” or “rough proportionality to
the . . . impact on the land-use interest” constitutes a taking).

7
Property. Lucas, 505 U.S. at 1016. The DEP did not compel the Scotts to enter into
an oil and gas lease with EQT, nor did it compel Rice to locate the wells where it did.
The DEP’s role was similar to that of a court, in that it applied the Act and addressed
a factual question regarding the workability of the Scotts’ coal. See In re Lazy Days’
RV Ctr., Inc., 724 F.3d 418, 425 (3d Cir. 2013) (explaining a court did not commit a
taking where it did not interfere with established property rights but “adjudicated the
parties’ bona fide dispute regarding their rights under” a settlement agreement). The
DEP determined Rice was entitled to a permit, but this alone did nothing to interfere
with the Scotts’ established property rights. Further, to the extent the Scotts disagree
about the consequences of their legal relationships with EQT and Rice, it is a dispute
between private parties.7
The Scotts’ theory fails for the additional reason that it is speculative. In PBS
Coals, Inc. v. Department of Transportation, 244 A.3d 386, 389-90 (Pa. 2021), the
Pennsylvania Supreme Court considered a takings claim under the Eminent Domain
Code,8 alleging the Department of Transportation denied a coal owner and its lessee

7
Despite the statements in Lucas that seemingly describe a physical invasion of property resulting
from government regulation as a form of regulatory taking, see 505 U.S. at 1015, the United States
Supreme Court has distinguished physical takings from regulatory takings as follows:

Our cases have often described use restrictions that go “too far” as
“regulatory takings.” But that label can mislead. Government action that
physically appropriates property is no less a physical taking because it arises from
a regulation. . . . The essential question is not . . . whether the government action
at issue comes garbed as a regulation (or statute, or ordinance, or miscellaneous
decree). It is whether the government has physically taken property for itself or
someone else—by whatever means—or has instead restricted a property owner’s
ability to use his own property. Whenever a regulation results in a physical
appropriation of property, a per se taking has occurred . . . .

Cedar Point Nursery v. Hassid, 594 U.S. 139, 149 (2021) (citations omitted). This distinction does
not change our analysis, and we would conclude the Scotts are not entitled to relief even describing
the DEP’s actions as an alleged “per se physical taking” rather than a “regulatory taking.” See id.

8
26 Pa.C.S. §§ 101-1106.

8
(collectively, Coal Companies) access to their coal by building a highway (Highway
219) on an adjacent parcel. Our Supreme Court reasoned the Coal Companies’ claim
failed because they were not mining the coal and did not establish they were likely to
obtain a mining permit:

The Coal Companies cannot use and enjoy their coal estate because
there is no mining operation on the . . . property, and they did not meet
their heavy evidentiary burden to establish any likelihood that they will
be able to obtain a surface mining permit to begin a mining operation
to extract the coal. . . . There is little doubt that Highway 219 would be
the immediate and necessary consequence of the Coal Companies’
inability to use and enjoy their coal estate if a mining operation existed,
or could be commenced with a permit, on the property. However, . . .
the highway is only theoretically preventing the Coal Companies from
using their coal estate. As things stand, the coal estate sits idle and may
not be mined; therefore Highway 219 has not resulted in any
deprivation to the Coal Companies whatsoever. . . .

Id. at 406 (emphasis in original, footnote omitted). The same reasoning applies here.
The Scotts argue their coal is workable under the Act and the DEP’s guidance, based
on thickness and “overburden.” Scotts’ Reply Br. at 15-16. Nonetheless, they do not
argue they are actively mining, or would be likely to obtain a permit to mine, the coal
in the area of Rice’s wells. See id. at 23 n.5.
These issues aside, the DEP’s permitting decision did not deprive the Scotts of
“all economically beneficial or productive use” of their Property. Lucas, 505 U.S. at
1016. The Scotts are engaging in other economically beneficial and productive uses
by entering into an oil and gas lease with EQT. Contrary to the Scotts’ argument,
the question is not whether they have been deprived of “their coal estate’s only use,”
Scotts’ Br. at 25, but whether the Property has been deprived of its uses as a whole.
As the United States Supreme Court has explained:

9
[T]he submission that appellants may establish a “taking” simply by
showing that they have been denied the ability to exploit a property
interest that they heretofore had believed was available for
development is quite simply untenable. . . . “Taking” jurisprudence
does not divide a single parcel into discrete segments and attempt to
determine whether rights in a particular segment have been entirely
abrogated. In deciding whether a particular governmental action has
effected a taking, this Court focuses rather both on the character of the
action and on the nature and extent of the interference with rights in the
parcel as a whole . . . .

Penn Cent. Transp. Co. v. City of New York, 438 U.S. 104, 130-31 (1978). In other
words, “where an owner possesses a full ‘bundle’ of property rights, the destruction
of one ‘strand’ of the bundle is not a taking.” See Tahoe-Sierra Pres. Council, Inc.
v. Tahoe Reg’l Plan. Agency, 535 U.S. 302, 327 (2002) (quoting Andrus v. Allard,
444 U.S. 51, 66 (1979)).
Indeed, the Pennsylvania Supreme Court has expressly refuted the contention
that the loss of mining rights results in a taking where other economically viable uses
remain. In concluding an “unsuitable for mining” (UFM) designation did not deprive
Machipongo Land and Coal Co., Inc. (Machipongo) of all economically beneficial or
productive use of its land, the Court reasoned:

Machipongo owns 373 acres in fee simple within the UFM area and
1000 acres outside of the UFM area. Within the UFM area,
Machipongo owns surface rights as well as mineral rights. The
regulation, therefore, does not “deprive . . . [it] of all economically
beneficial” use of its property because Machipongo admits that it
benefits from its surface rights by selling timber and entering into
leases for gas development. Further evidence of the value of the
Machipongo surface estate is clear from the record. Specifically, in
1994, in what Machipongo contends was a “forced sale”, Machipongo
received $60,000 for 35.93 acres of its property. It, therefore, appears
that if Machipongo sold the remaining 373 acres of undeveloped land
within the UFM area, at the same price per acre as the 1994 sale, it
would earn, in 1994 dollars, at least $622,878. Clearly, the regulation
does not deny Machipongo “all economically beneficial” use of its

10
property. Accordingly, we find that the regulation, as it relates to
Machipongo, passes the Lucas test.

Machipongo, 799 A.2d at 769-70 (alterations in original, citations omitted, emphasis
added).
The Scotts’ alternative “traditional takings” argument fails for similar reasons.
Using the Property for oil and gas purposes provides economic benefits to the Scotts
and is consistent with any reasonable “distinct investment-backed expectations” they
may have had. Murr, 582 U.S. at 384. The Property was already subject to an oil and
gas lease when Douglas Scott purchased it in 2002, and it should come as no surprise
that oil and gas development on the Property might limit other potential uses, such as
mining. A “traditional takings” analysis, and any regulatory takings analysis for that
matter, focuses on “regulatory actions that are functionally equivalent to the classic
taking in which government directly appropriates private property or ousts the owner
from his domain.” See Lingle v. Chevron U.S.A. Inc., 544 U.S. 528, 539 (2005). No
matter how the Scotts present their takings claim, the DEP’s permitting decision falls
short of this standard.
Mootness
In the Scotts’ remaining claims, they argue the DEP’s determination that their
coal was unworkable was arbitrary and capricious and dispute the Board’s reasoning
that any challenge to the DEP’s workability determination is moot. The Scotts assert
Rice’s own logs establish the coal was workable, but the DEP unreasonably rejected
this evidence and relied instead on “blurred maps.”9 Scotts’ Br. at 42-44. Although

9
The Scotts argue the DEP “relied on Rice’s submission of blurred zoomed-in versions of outdated
mineral resource (M-68) maps which indicated only inferred coal presence from generalized data
available in 1971, explicitly denoting that the data does not reflect the actual thickness of a coal
seam on any one property, but only a probability.” Scotts’ Reply Br. at 8 (citations and quotation
marks omitted).

11
Rice has already drilled through the coal, the Scotts argue the issue is not moot
because Rice’s statutory obligations “substantially depend and are concretely
affected by whether” the coal is workable. Id. at 38. The Scotts also contend that
reversing the workability determination would allow them to seek damages in the
Court of Common Pleas. Id. at 39-40.
Critically, “[t]he mootness doctrine requires that an actual case or controversy
must be extant at all stages of review.” Pub. Def.’s Off. of Venango Cnty. v. Venango
Cnty. Ct. of Common Pleas, 893 A.2d 1275, 1279 (Pa. 2009) (quoting Pap’s A.M. v.
City of Erie, 812 A.2d 591, 600 (Pa. 2002)). Our case law “requires a real and not a
hypothetical legal controversy and one that affects another in a concrete manner so
as to provide a factual predicate for reasoned adjudication, with sufficiently adverse
parties to sharpen the issues for judicial resolution.” City of Philadelphia v. Se. Pa.
Transp. Auth. (SEPTA), 937 A.2d 1176, 1179 (Pa. Cmwlth. 2007) (en banc). An
issue will be moot if “a subsequent change in circumstances has eliminated the
controversy so that the court lacks the ability to issue a meaningful order, that is, an
order that can have any practical effect.” Burke ex rel. Burke v. Indep. Blue Cross,
103 A.3d 1267, 1271 (Pa. 2014).
The Scotts contend that reversing the DEP’s workability determination would
affect Rice’s statutory obligations toward the Scotts because different requirements
apply when plugging a well that is drilled through a workable coal seam. Scotts’ Br.
at 38-39. However, the Scotts do not address the Board’s reasoning that Rice drilled
its wells through the Pittsburgh coal seam, which is a workable coal seam, and those
same obligations would apply regardless of the determination in this case. See R.R.
at 2171a. The Scotts also fail to address how Rice’s compliance with the obligations

12
would affect them in a “concrete,” rather than merely hypothetical, manner. See City
of Philadelphia, 937 A.2d at 1179.
Regarding the Scotts’ argument that they could seek damages in the Court of
Common Pleas, this Court has held the Board may adjudicate a takings claim even if
it lacks the ability to award damages:

The Environmental Hearing Board Act[10] gives the [Board] jurisdiction
over appeals which, inter alia, raise constitutional challenges to an
order of the [DEP’s predecessor, the Department of Environmental
Resources] based upon takings-related analysis and empowers the
[Board] to adjudicate the lawfulness of those orders and to set them
aside if they amount to unconstitutional takings. The jurisdiction of the
courts of common pleas under the Eminent Domain Code might then
be invoked in order to determine the amount of damages, if any, that
might have occurred as a result of the taking while it was ongoing.

Beltrami Enters., Inc. v. Dep’t of Env’t Res., 632 A.2d 989, 993 (Pa. Cmwlth. 1993).
Here, we have already considered the Scotts’ takings claim and determined they are
not entitled to relief. In their briefs to this Court, the Scotts do not identify any relief
they could pursue in the Court of Common Pleas, other than an action resulting from
their takings claim.11 See Scotts’ Br. at 39-40.
Finally, the Scotts’ allegation of arbitrary and capricious agency conduct does
not satisfy any exceptions to the mootness doctrine. “An exception to mootness will
be found where (1) the conduct complained of is capable of repetition yet likely to
evade judicial review; (2) the case involves issues of great public importance; or (3)

10
Act of July 13, 1988, P.L. 530, 35 P.S. §§ 7511-16.

11
The Scotts assert in their reply brief that a claim of arbitrary and capricious agency action cannot
be moot. Scotts’ Reply Br. at 11. The Scotts do not develop this argument and merely cite to cases
suggesting damages are available for a takings claim. See id. at 11-13.

13
one party will suffer a detriment in the absence of a court determination.” Mistich v.
Pa. Bd. of Prob. & Parole, 863 A.2d 116, 119 (Pa. Cmwlth. 2004).
The Scotts do not contend their dispute with Rice regarding the workability of
the coal seams will reoccur. Moreover, assuming their dispute will reoccur, it is not
inherently likely to evade review because the Scotts may request a supersedeas from
the Board pending appeal12 or an injunction from the Court of Common Pleas if they
disagree with the DEP’s determination.13 The Scotts’ claim is not one of great public

12
Section 4(d)(1) of the Environmental Hearing Board Act provides:

(d) Supersedeas.--

(1) No appeal shall act as an automatic supersedeas. The [B]oard
may, however, grant a supersedeas upon cause shown. The [B]oard,
in granting or denying a supersedeas, shall be guided by relevant
judicial precedent and the [B]oard’s own precedent. Among the
factors to be considered are:

(i) Irreparable harm to the petitioner.

(ii) The likelihood of the petitioner prevailing on the
merits.

(iii) The likelihood of injury to the public or other
parties, such as the permittee in third party appeals.

(2) A supersedeas shall not be issued in cases where pollution or
injury to the public health, safety or welfare exists or is threatened
during the period when the supersedeas would be in effect.

(3) The [B]oard shall promulgate regulations for issuance or denial
of a temporary supersedeas.

35 P.S. § 7514(d).

13
The Scotts suggest it would not have been possible for them to prevent the sterilization of their
coal by pursuing a supersedeas or injunction because Rice began drilling the oil and gas wells only
(Footnote continued on next page…)

14
importance because it is generally a factual disagreement pertinent only to the parties
in this matter. In addition, failing to rule on the Scotts’ claim will not cause them to
suffer a detriment because, as we explained above, the Scotts have not identified any
concrete way in which reversing the workability determination would affect them or
any relief they could pursue in the Court of Common Pleas as a result of a favorable
decision, other than an action based on their takings claim.
CONCLUSION
For the foregoing reasons, the DEP’s decision to grant Rice permits to drill oil
and gas wells did not constitute a regulatory taking of the Scotts’ coal in violation of
the United States or Pennsylvania Constitutions. Because Rice has already drilled
the disputed wells, the Scotts’ remaining claims are moot. Thus, we affirm the
Board’s April 29, 2024 order.

---

STACY WALLACE, Judge

three days after receiving its permits. Scotts’ Reply Br. at 13. At the same time, the Scotts do not
dispute that the actual drilling through their coal was not complete until weeks or months later. See
Scotts’ Br. at 18.

15
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Douglas Scott and :
Linda Marie Scott, :
Petitioners :
:
v. : No. 672 C.D. 2024
:
Department of Environmental :
Protection and Rice Drilling B LLC :
(Environmental Hearing Board), :
Respondents :

ORDER

AND NOW, this 2nd day of April 2026, the order of the Environmental
Hearing Board, dated April 29, 2024, is AFFIRMED.

---

STACY WALLACE, Judge