Portions of Act 13 gas drilling law struck down as unconstitutional

David Singer          Observer Reporter          September 28, 2016


A Range Resources natural gas well in Hopewell Township

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.

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.

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