Local municipalities file Act 13 briefs in Supreme Court
More than a year after the Pennsylvania Supreme Court ruled that major provisions of Act 13 were unconstitutional, other provisions of the state law governing oil and natural gas development are returning to the high court for review.
The parties that first challenged the law in 2012 are now appealing a Commonwealth Court decision last summer that upheld parts of the law pertaining to eminent domain, notification of spills and what they call a “physician gag rule.” The appellants, which include an environmental group, a physician and seven municipalities, argue those provisions are unconstitutional, as well. The municipalities – including South Fayette, Peters, Cecil and Mt. Pleasant townships – submitted a brief Feb. 17 in support of their appeal.
After the Supreme Court struck down key provisions of Act 13 in December 2013, it also remanded several provisions of the law back to Commonwealth Court for review. The petitioners in the case considered it a victory when the lower court ruled municipalities cannot be subjected to zoning reviews by the Public Utility Commission and, subsequently, to revocations of impact fee money. The PUC since appealed that decision.
But the municipalities disagreed with the court’s decision to uphold other provisions of the law they had challenged. One of those provisions requires the state Department of Environmental Protection to notify a public drinking water facility if a spill occurs that could affect water supplies. The problem is that the law does not expressly protect those who use private wells or springs, the parties argued in their brief.
The municipalities argued there is a greater need to notify residents who have private drinking water of a spill because drilling primarily occurs in rural areas where public water may not be available. They said the DEP and the industry are taking a reactive rather than a proactive stance by waiting for a complaint to surface regarding the quality of a private water source before investigating whether a spill occurred.
They say the provision is a “special law” that unjustly creates a distinction between public and private water sources.
“The only reason for the different treatment is clear – a desire to mask the true effects of the oil and gas industry on rural communities, which are experiencing the brunt of shale gas development,” the parties wrote.
They also challenged a provision granting the power of eminent domain to corporations that transport, sell or store natural gas. The municipalities argued this provision allows companies to take property for the injection, storage or removal of natural gas with no guarantee of a direct benefit to the public.
The third provision in question states that a health professional requesting chemical information related to oil and gas operations in order to diagnose or treat a patient must verbally acknowledge that the information will be kept confidential. The law states that the vendor providing the chemical information may ask the health professional to provide a written statement or sign a confidentiality agreement.
The municipalities argued this provision interferes with physician-patient relations and restricts the ability of a physician to communicate with specialists such as epidemiologists and toxicologists.
“Act 13 restricts health professionals’ abilities to disclose critical diagnostic information necessary for medical treatment solely because the natural gas industry deems such information ‘proprietary’ or a ‘trade secret,'” they wrote. “No other law is so restrictive in the use of trade secret information – not federal work protection rules, and not federal and state chemical disclosure provisions that apply to other industries.”
One physician is a party in the ongoing Act 13 case. Mehernosh Khan worked as a primary care physician for more than 30 years in the Pittsburgh area, according to StateImpact Pennsylvania.
The DEP, PUC and attorney general will soon be filing briefs in response to the appeal, according to attorney John Smith, who represents the appellants.