Pennsylvania Supreme Court Rules Fracking Law Unconstitutional

by Sofia Plagakis, 12/20/2013

Yesterday, the Pennsylvania Supreme Court overturned parts of a controversial 2012 state law, called Act 13, which allowed gas companies to drill anywhere in the state without regard to local zoning laws. The Court’s decision upholds the ability of local governments to establish quality-of-life protections their constituencies want.

Act 13 included provisions that specifically restricted local municipalities' ability to control where companies may place rigs, waste pits, pipelines and compressor and processing stations. Seven municipalities challenged the shale drilling law. A lower court ruled against the law in 2012, and the zoning rules never went into effect. But then, the state appealed to the Pennsylvania Supreme Court seeking to keep the law and zoning loopholes intact.

In a 4-2 ruling, the state supreme court ruled Act 13 unconstitutional as it violates the Environmental Rights Amendment to the Pennsylvania Constitution, which guarantees residents the “right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.” The court stated “…at its core, this dispute centers upon an asserted vindication of citizens’ rights to quality of life on their properties and in their hometowns...”

“But, when government acts, the actions must, on balance, reasonably account for the environment of the affected locale…” stated the court. “By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.”

In addition, the court’s ruling also sent back to the Commonwealth Court—one of the state’s appellate courts—challenges to Act 13’s provisions that prohibit medical professionals from telling patients about the health impacts of the chemicals used in fracking. In October, a Pennsylvania court threw out a local doctor’s challenge of the “gag order,” claiming that it infringed on his duties as a doctor.  The state Supreme Court noted that Act 13 puts doctors in the difficult position of choosing between violating Act 13’s confidentiality agreement for doctors and violating his legal and ethical obligations to treat patients.

Yesterday’s ruling could also have a broader impact across the country as the issue of who has control over fracking—localities or the state—has intensified. As evidence of the public health and environmental risks involved in fracking increases, more communities across the country haven enacted local bans on fracking, while state governments and corporations have started legally challenging these efforts. Ohio, for instance, has a law with similar zoning provisions to Pennsylvania, and communities in Colorado are facing legal challenges to their recent votes to pass local fracking bans.

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