Big Legal Victory in Pennsylvania: Supreme Court rules 2012 law unfairly gave frackers illegal “special” treatment; Declares Act 13 an unconstitutional “special law” benefiting specific groups or industries, including its “physician gag order” restricting health-care professionals from getting information about chemicals that could harm their patients

A few of the comments

Bob Donnan7 hours ago
The citizens of Pennsylvania owe a huge debt of gratitude to those who fought long and hard for the rights of all Pennsylvanians in the bold face of industry and political favoritism. Sincere thanks are due to attorneys John M. Smith, Jon Kamin and Jordan Yeager; Past and present township officials Brian Coppola and David M. Ball, individuals Mehernosh Khan MD and Maya Van Rossum including the Delaware Riverkeeper Network; The townships of Robinson (Washington County), Nockamixon, South Fayette, Peters Township, Cecil Township, Mount Pleasant Township and the Borough of Yardley; and all the individuals and groups who supported this fight for our constitutional rights in the Commonwealth of Pennsylvania.

Frederick Warren7 hours ago
I read this story feeling it must be from a science fiction, fantasy, horror show. For example, “a physician gag rule’ !? Also, this Act 13 allowed the industry to seize privately owned subsurface property through eminent domain !?

Has Pennsylvania become subservient to the dictates of foreign interests? Their focus being solely on taking lands from families and communities, in order to “drill, baby, drill.”

I feared the “Cancer Alley” of Louisiana, from the oil and gas industry may have planted roots through Western Pennsylvania, through the in-breeding of the industry, conservatism and the GOP.

Well, Thank God for Gov. Wolfe and the PA. Supreme Court, to simply look out for the interests of people, and the health of our water, land and air. At least in this instance

dayle carnehgie10 hours ago
Marcellus Shale Coalition: ordinary Pennsylvanians don’t believe your rhetoric. Pennsylvania has only gotten poorer since the Marcellus shale has been developed. We now have the 3rd highest gasoline taxes in the nation, the 2nd highest tuition for state universities, one of the highest cost-toll roads, and PA is among the lowest in employment growth. Where’s the money? Why are we not rich like Texas? …

2012-pas-act-13-favouring-shale-drillers-and-fracers-over-physicians-communities-land-air-and-water

Law unfairly gave shale drillers ‘special’ treatment, Pa. Supreme Court rules by Don Hopey, September 29, 2016, Pittsburgh Post-Gazette

The Pennsylvania Supreme Court has decided that Act 13, the state Legislature’s 2012 attempt to accommodate the shale gas industry, is an unconstitutional “special law” that benefits specific groups or industries.

The court, in a decision Wednesday, said Act 13’s provisions limiting notification of spills and leaks to public water suppliers but not to private well owners, and its “physician gag order” restricting health-care professionals from getting information about drilling chemicals that could harm their patients, violate the state constitution’s prohibition against special laws.

The court also struck down the provision that allows companies involved in transporting, selling, or storing natural gas to seize privately owned subsurface property through eminent domain.

And the decision prohibits the Public Utility Commission from reviewing local ordinances and withholding impact-fee payments from municipalities that limit shale gas drilling.

“The decision is another historic vindication for the people’s constitutional rights,” said Jordan Yeager, lead counsel representing the Delaware Riverkeeper Network and Bucks County municipalities in the case.

“The court has made a clear declaration that the Pennsylvania legislature cannot enact special laws that benefit the fossil fuel industry and injure the rest of us.”

Marcellus Shale Coalition president David Spigelmyer praised Act 13 as a “commonsense bipartisan law that modernized our oil and natural gas regulatory framework,” and said he was disappointed with the court’s ruling, “which will make investing and growing jobs in the commonwealth more – not less – difficult without realizing any environmental or public safety benefits.”

Neil Shader, a state Department of Environmental Protection spokesman, said the department’s lawyers were reviewing the ruling to determine its impact. He said the eventual need to notify private well owners of drilling spills and leaks affecting their water supplies could have the biggest impact on department operations. [Canadian water well owners, not even municipal, are not notified of oil and gas industry spills and leaks, not even when they are life threatening]

Act 13, the state’s February 2012 revision of its oil and gas law to deal with shale development, preempted municipal zoning of oil and gas development, established an impact fee on natural gas, and allowed gas transport and storage companies to take privately held subsurface property through eminent domain. In March 2012, seven municipalities, an environmental organization and its officer, an elected municipal official, and a doctor challenged multiple provisions of the law as unconstitutional.

“After reviewing the new law for 30 days, we were able to pick out a number of provisions we felt were unconstitutional, and the court today agreed with us on almost all of them,” said John Smith, who represented four Western Pennsylvania municipalities in the case.

The Supreme Court ruled significant parts of it unconstitutional in late 2013 and ordered Commonwealth Court to reconsider other provisions. The Supreme Court ruling Wednesday addresses the lower court rulings and should end the lengthy legal battle, Smith said.

“A majority of our state legislators joined with the oil and gas industry in placing corporate desires and profits over the constitutional rights of Pennsylvania citizens,” he said. [Just like Canadian provinces and territories have]

Smith said the court extended the notification provision for public water suppliers for 180 days to allow the legislature time to add private water supplies to the notification requirement, noting that 25 percent of Pennsylvanians get their drinking water from private wells or springs, and that every one of the cases of water contamination caused by the gas industry has affected one or more private wells.

State Rep. Dan Frankel (D., Allegheny) praised the court for removing from the law the “physician gag rule,” which some doctors feared would restrict their ability to diagnose, treat, and communicate with patients whose health could be affected by chemicals from shale gas drilling and hydraulic fracturing.

“Patients shouldn’t worry that they are on the receiving end of a political agenda when they go to the doctor,” [As happens regularly in Alberta] said Frankel, who has sponsored legislation aimed at repealing that provision of Act 13. “And doctors and nurses shouldn’t have to choose between caring for their patients or following a law that would have forced them to practice bad medicine.” [Emphasis added]

Portions of Act 13 gas drilling law struck down as unconstitutional by David Singer, September 28, 2016

Provisions in the natural gas and oil drilling law known as Act 13 were ruled unconstitutional Wednesday by Pennsylvania Supreme Court.

The case, Robinson Township et al v. Commonwealth of Pennsylvania, was challenged primarily in four areas – a medical gag against physicians; a provision that only public water customers would be notified of spills or leaks at gas drilling sites, not those who use private water sources; Public Utility Commission’s ability to withhold impact fee money if local ordinances didn’t comply with state law; and eminent domain privileges for natural gas companies using private land for storage of natural gas.

All were struck down as violating either state or U.S. constitutions.

The medical confidentiality enforcement against physicians – a gag order – was ruled unconstitutional despite an earlier Commonwealth Court ruling that proprietary chemicals in fracking fluids were valid as trade secrets not to be discussed with patients. The high court ruled “no other industry in the commonwealth has been statutorily shielded in this manner” and it would create an undue conflict of interest for a doctor weighing obligations to effectively treat and consult with a patient or to accidentally disclose supposed proprietary business information.

In the spill issue, the court ruled the state Legislature has 180 days to change the notification requirements to alert anyone affected by a spill or leak. Attorney John Smith, who represented many of the appellants in the case, said it was obvious private water consumers would need notification.

The lead appellant in the case, Brian Coppola, a former Robinson Township supervisors chairman, said the water notification issue was important.

“We had a very large spill in the township. The township wasn’t notified, the homeowners and well water users weren’t notified; we found out by accident. When I became a supervisor, I took an oath to uphold the state constitution. When (former) Governor (Tom) Corbett and the legislature signed this into law, I knew it was unconstitutional. The law was 100 percent on our side,” Coppola said.

Smith said the rulings show how state lawmakers allowed industry interests to trump health and safety.

“It shows how influential oil and gas lobbyists were in drafting this law and that the constitution took a back seat,” Smith said. [Did the oil and gas industry, or Encana specifically perhaps, write Section 43 of the ERCB Act in Alberta granting the AER total legal immunity even for acts in bad faith and gross negligence, and for violating the constitutional rights of Albertans?] 

As for the provisions allowing eminent domain, Smith said there was no public purpose for a company to cite eminent domain to annex private land for storage of natural gas. The ruling said the eminent domain provision “is unconstitutional on its face, as it grants a corporation the power of eminent domain to take private property for a private purpose … in violation of the U.S. Constitution.”

Coppola said the eminent domain denial will prevent other industries from trying to operate a public utility.

“This was a victory for every Pennsylvanian,” said Peters Township councilman and appellant David Ball. “This completes the picture, from zoning to water to allowing doctors to treat their patients without worry, it’s finally done, because the original law was complete legislative overreach.”

David Spigelmyer, president of Marcellus Shale Coalition, said the organization is disappointed in aspects of the court’s ruling.

“(The ruling) will make investing and growing jobs in the Commonwealth more-not less-difficult without realizing any environmental or public safety benefits. Despite this ruling, our industry remains deeply committed to adhering to the high bar set by Act 13, a common sense bipartisan law that modernized our oil and natural gas regulatory framework and serves as a national model for other states,” Spigelmyer said. [Emphasis added]

Scope Of Natural Gas Law Again Limited By Pa. High Court by Alex Wolf, September 28, 2016, Law360

Pennsylvania’s controversial law governing oil and gas drilling in the state was once again weakened by the state Supreme Court, which on Wednesday invalidated provisions that allow limitations on post-spill drinking water notifications, block physicians from disclosing components in fracking chemicals and give natural gas shippers the power to use eminent domain. [Emphasis added]

Pennsylvania Supreme Court Rules Further on Act 13 Challenge, Plaintiffs Environmental, Municipal and Doctor Once Again Set Important Precedent Press Release by Delaware River Keeper, September 28, 2016

Pittsburgh, Pennsylvania: In an 88 page opinion written by Supreme Court Justice Todd
and joined by Justices Donohue, Dougherty and Wecht, and issued today, the Pennsylvania Supreme Court ruled:

 Sections 3218.1 of Act 13 which “requires notice by the DEP in the event of a spill of
chemicals or waste associated with the fracking process to public water facilities, but not to
owners of private wells, violates the prohibition in Article III, Section 32 of the
Pennsylvania Constitution against the enactment of “special laws,”” and therefore are
unconstitutional and enjoined;

 “Section 3241 of Act 13, which facially permits any private corporation empowered to
transport, sell, or store natural gas or manufactured gas in Pennsylvania to seize subsurface lands of a private property owner for the purpose of storing natural gas therein, violates the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution by permitting a taking of private property for a private purpose,” and therefore is unconstitutional and enjoined.

 Enjoins Sections 3305-3309 of Act 13 which allowed the PUC to declare local ordinances
regarding oil and gas operations to be in violation of law and invalid and to declare
offending municipalities ineligible for impact fees collected from the oil and gas industry, as these provisions are not severable from other provisions already determined by the court to be unconstitutional;

 Sections 3222.1(b)(10) and (b)(11) of Act 13, otherwise known as the medical gag rule,
“which limit health professionals’ access to, and use of, information regarding chemicals
used in the hydraulic fracturing process, which has been designated confidential and
proprietary information or trade secrets by a vendor, service provider, or well operator, violate the prohibitions in Article III, Section 32 of the Pennsylvania Constitution against the enactment of “special laws,” are violation Art III, section 32 of the Pennsylvania constitution as an enactment of special laws and therefore are unconstitutional and enjoined. 

“Shale gas extraction is wreaking havoc on communities and the environment. This most recent decision out of the Pennsylvania Supreme Court provides important needed protections from both the oil and gas industry and the government officials that continue to support the industry over the people and our environment. The Delaware Riverkeeper Network, Dr. Kahn, and our municipal partners in this case should not have had to bring and pursue this legal action, but thank goodness we did, because without our efforts, communities and the environment would have lost every shred of their rights to defend themselves and their constitutional rights under the law,” said Maya van Rossum, the Delaware Riverkeeper and leader of the Delaware Riverkeeper Network, both co-plaintiffs in the case.

“The decision is another historic vindication for the people’s constitutional rights. The
court has made a clear declaration that the Pennsylvania legislature cannot enact special laws that benefit the fossil fuel industry and injure the rest of us,” stated Jordan Yeager, lead counsel on the case representing the Delaware Riverkeeper Network and Bucks County municipalities on the case.

Background: Seven municipalities, Maya van Rossum in her capacity as the Delaware
Riverkeeper, the Delaware Riverkeeper Network, and Dr. Mehernosh Khan filed the initial legal pleading in Commonwealth Court on March 29, 2012 challenging Act 13, also known as HB1950, which was signed into law by Governor Corbett on February 14, 2012. The municipalities are: Township of Robinson, Washington County; Township of Nockamixon, Bucks County; Township of South Fayette, Allegheny County; Peters Township, Washington County; Township of Cecil, Washington County; Mount Pleasant Township, Washington County; and the Borough of Yardley, Bucks County.

Act 13 amended the Pennsylvania Oil and Gas Act, preempting municipal zoning of oil and
gas development. It also established an impact fee on natural gas. The named Appellants are the Commonwealth of Pennsylvania; Pennsylvania Public Utility Commission (“PUC”); Office of the Attorney General of Pennsylvania; and the Pennsylvania Department of Environmental Protection (“DEP”).

The initial decision was issued by the Pennsylvania Supreme Court on December 19, 2013
declaring key provisions of the law as violating various elements of law, including the Article 1, section 27 of the Pennsylvania Constitution.

But provisions of the act remained in dispute, including the medical gag rule, the provision
that required notification of spills into public water supply facilities but not the users of private water supplies, and which allowed the taking of private land for use by a private drilling company to inject, store and later remove drilled gas supplies for their private corporate purposes, and the ability of the PUC directly, or at the behest of an oil & gas company to review a local ordinance and declare it as in violation of the law and invalidate it, including collecting attorneys against the offending municipality and to declare them unable to benefit from impact fees collected from the oil & gas industry . Today’s decision responds to these still outstanding issues. [Emphasis added]

Most recent decision as well as previous rules by the PA supreme court on the case can be found at: bit.ly/DRN-Act13Victory

Act 13 amended the Pennsylvania Oil and Gas Act, preempting municipal zoning of oil and gas development. It also established an impact fee on natural gas.

The  Delaware Riverkeeper Network, Maya van Rossum in her capacity as the Delaware Riverkeeper, Dr. Mehernosh Khan, and seven municipalities filed suit on March 29, 2012 challenging the law on the grounds it violates the Pennsylvania and United States Constitutions and endangers public health, natural resources, communities and the environment. The municipalities participating are: Township of Robinson, Washington County; Township of Nockamixon, Bucks County; Township of South Fayette, Allegheny County; Peters Township, Washington County; Township of Cecil, Washington County; Mount Pleasant Township, Washington County; and the Borough of Yardley, Bucks County.

The named Appellants are the Commonwealth of Pennsylvania; Pennsylvania Public Utility Commission (“PUC”); Office of the Attorney General of Pennsylvania; and the Pennsylvania Department of Environmental Protection (“DEP”).

Oral argument was held before the PA supreme court on October 17, 2012.

The Pennsylvania Supreme Court issued its decision on December 19, 2013. In that decision the Pennsylvania Supreme Court ruled that Act 13 violates the Pennsylvania Constitution on the grounds that it violates the Environmental Rights Amendment. In doing so, the Court held that the right to pure water, clean air and a healthy environment are fundamental rights that must be given high-priority consideration and protection by every level of Pennsylvania’s government. The Court’s decision also struck down the shale gas industry’s effort to force every municipality in the state to allow gas drilling and related industrial operations in every zoning district. The Court’s decision upheld the ability of local governments to protect their local communities and natural resources through zoning. Chief Justice Castille authored the historic majority opinion. Justices Todd, McCaffrey and Baer joined in the result.

Justices Castille, Todd, and McCaffrey held that provisions of the law violate Article I, Section 27 of the Pennsylvania Constitution – the Environmental Rights Amendment. Justice Castille stated that “we agree with the citizens that, as an exercise of the police power, Sections 3215(b)(4) and (d), 3303, and 3304 are incompatible with the Commonwealth’s duty as trustee of Pennsylvania’s public natural resources.” In discussing Section 3304’s uniform zoning provisions, Justices Castille, Todd, and McCaffrey agreed that the provisions “sanctioned a direct and harmful degradation of the environmental quality of life in these communities and zoning districts.” They also concluded that the Act forced some citizens to bear “heavier environmental and habitability burdens than others,” in violation of Section 27’s mandate that public trust resources be managed for the benefit of all the people. 

Justice Baer concurred in finding Act 13 unconstitutional, agreeing with the Commonwealth Court’s reasoning. Justice Baer stated that the provisions “force municipalities to enact zoning ordinances, which violate the substantive due process rights of their citizenries.” He further noted “Pennsylvania’s extreme diversity” in municipality size and topography and that zoning ordinances must “give consideration to the character of the municipality,” among other factors, which Act 13 did not.

The Rulings

Concurring_Dissenting Opinion _2

Supreme Court Decision Robinson Twp. DRN, et al. v. Commonwealth

[Refer also to:

2013 12 20: VICTORY! Pennsylvania Supreme Court Says It’s Unconstitutional For Gas Companies To Frack Wherever They Want; Act 13, Gas Industry Takeover Law thrown out by State’s Highest Court

“By any responsible account,” Chief Justice Castille wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” ]

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