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Robinson Township v. Commonwealth

ELR Citation: 46 ELR 20156
Nos. 104 MAP 2014 & 105 MAP 2014, (Pa., 09/28/2016)

The Pennsylvania Supreme Court struck down as unconstitutional portions of a 2012 law governing oil and gas operations in the Marcellus Shale. This is the second time the law, known as Act 13, has been reviewed by the court: in 2013, the court struck down provisions that limited the zoning powers of municipalities to regulate the industry as well as provisions that required the Commonwealth's environmental agency to grant mandatory waivers of certain setback provisions, among others. In the latest decision, the court struck down the Act's physician non-disclosure requirements, which prevent health professionals diagnosing or treating patients from accessing information about chemicals used in the fracking process claimed to be trade secrets or confidential proprietary information unless they signed a written statement of need and confidentiality agreement. These provisions benefit only one industry. As such, they constitute special legislation, which is forbidden under the Pennsylvania Constitution. The court also invalidated a provision stating that in the event of a spill of chemicals, waste, or other substances associated with the fracking process, the agency need only notify public drinking water facilities that could be affected, but not owners of private wells that supply drinking water. Again, this was a special law and therefore unconstitutional. The court also struck down a provision that allowed corporations that transport, sell, or store natural gas in the Commonwealth to exercise eminent domain and take private property in order to store the gas underground in a rock layer that is now or previously has been commercially productive of natural gas. This provision grants corporations the power of eminent domain to take private property for a private purpose and is unconstitutional on its face. The court also enjoined provisions that allowed certain enforcement processes to be used against municipalities that overregulated oil and gas operations. As a result of this latest ruling, much of Act 13 has been invalidated.