A closer look: Pa. Supreme Court decision on fracking

The state Supreme Court recently declared unconstitutional certain provisions of Act 13, the state natural gas drilling law. While only a handful of provisions were struck down, the impact could be far-reaching, according to Penn State Dickinson School of Law professor Ross Pifer.

“Is the rest of the statute so integrally connected to the unconstitutional statutes that they, too, must be struck down?” Pifer asked.

The question is being considered by the Commonwealth Court, which also will examine whether Act 13 violates a provision of the state constitution that requires similarly situated entities to be treated similarly, according to Pifer.

“The issue was raised as to whether this statute was treating the oil and gas industry differently than other similarly situated entities,” Pifer said.

If the court finds either scenario to be the case, Act 13 will be invalidated in its entirety, according to Pifer.

If Act 13 is found not to be entirely unconstitutional, the Commonwealth Court will look at the eminent domain section and medical provisions within the chemical disclosure section, according to Pifer.

Popularly called the “doctor gag order,” this portion of Act 13 restricts information a doctor can share with a patient exposed to drilling-related chemicals. It is among the legislation’s most controversial statutes.

Currently only four provisions of Act 13 have been deemed unconstitutional – most notably those that stripped municipalities of zoning power.

“Municipalities are essentially back in the position that they were in before Act 13 of 2012. They clearly have some ability to regulate but they still have some restrictions,” Pifer said.

Provisions regarding setback requirements and state Department of Environmental Protection waivers for those requirements also were invalidated, according to Pifer.

“(Those provisions) were struck down on the basis that there weren’t sufficient standards for DEP to determine how or when to grant these waivers,” Pifer said.

There now is no setback requirement for drilling near streams, lakes or rivers, according to Pifer. While Gov. Tom Corbett asked the industry to continue to comply with the overturned setback requirements, municipalities are free to set their own limits, according to Pifer.

“Those provisions have been struck down and so, until there’s some action on that reconsideration, I think everyone can operate on the basis that these provisions are no longer part of the law,” Pifer said.

The Supreme Court’s historic decision also calls into question the power and relevance of the Environmental Rights Amendment, which was passed in the early 1970s. The Environmental Rights Amendment states that the public has the right to clean air and clean water. It also imposes a duty upon the commonwealth to maintain public resources for the benefit of all, according to Pifer.

“Up to Act 13, I think it’s fair to say that there was a question as to how much teeth (the Environmental Rights Amendment) really had,” Pifer said.

In his opinion, Supreme Court Chief Justice Ronald Castille uses “very, very strong language” and the authority of the Environmental Rights Amendment to declare portions of Act 13 unconstitutional, according to Pifer.

Three justices signed on to the entirety of Castille’s opinion; one concurred in Castille’s result but not his specific reasoning; and the remaining two dissented, according to Pifer.

“If it had been a majority opinion, it would have had a huge impact moving forward because it placed great emphasis on the constitutional rights the public has through the Environmental Rights Amendment. But it was only signed off on by three justices. So the question is, how is that going to play out in the future?” Pifer said.

Depending on the weight placed on Castille’s opinion, it could have an impact well beyond the oil and gas industry, according to Pifer. Pifer said he “certainly wouldn’t be surprised” if future claims emerge in lower courts that rely on Castille’s opinion to address the environmental impact of activities outside of oil and gas development.

“This opinion perhaps raises more questions than answers,” Pifer said of the Supreme Court ruling.