ACT 13 was signed into law by Pennsylvania Governor Tom Corbett on February 14, 2012.
An Act amending Title 58 (Oil and Gas) of the Pennsylvania Consolidated Statutes, providing for an unconventional gas well fee and for transfers from the Oil and Gas Lease Fund; providing for distribution of fees and transfers; establishing the Natural Gas Energy Development Program; consolidating the Oil and Gas Act with modifications and additions relating to definitions, well permits, permit objections, comments by municipalities and storage operators, well location restrictions, well site restoration, protection of water supplies, notification to public drinking water systems, containment for unconventional wells, transportation records regarding wastewater fluids, corrosion control requirements, gathering lines, well control emergency response, hydraulic fracturing chemical discharge requirements, bonding, air containment emissions, public nuisances, enforcement orders, well control emergency cost recovery, penalties, civil penalties, inspection and production of materials, witnesses, depositions and rights of entry, third party liability and inspection reports; providing for local ordinances relating to oil and gas operations and for responsibility for fee; making an appropriation; and making a related repeal.
Related: The Act that Money Built
Even before ACT
13 became law, there were many objections to the House Bill #1150 version. Among the objections concerned the removal of zoning power of communities and the creation of a one-size zoning code specifically for the fossil fuel industry in Pennsylvania. Additionally, there were objections by the health care community about the “medical gag rule”, which would require medical professionals to sign a non-disclosure agreement with a fossil fuel corporation for any information with regards to the chemicals used by the industry.
By the end of March 2012, 7 towns had filed a lawsuit. The lawsuit argued, in part, that Act 13 overturns a PA Supreme Court decision in 2009 in Huntley & Huntley, Inc. v. Borough Council of the Borough of Oakmont. The Huntley v. Oakmont decision made a distinction between “where versus how” when it comes to drilling. The court said the state’s interest in oil and gas development is primarily in the efficient production and utilization of natural resources, while the county’s interest is with land use control that is consistent with local demographic and environmental concerns.
Communities which filed the lawsuit are: Cecil, Peters, Mt. Pleasant, and Robinson (Washington County); South Fayette (Allegheny County); Yardley and Nockamixon (Bucks County). A number of other communities later expressed their support for the lawsuit.
In July 2012, the Pennsylvania Commonwealth Court ruled that Pennsylvania cannot require municipalities to allow drilling in areas where it would conflict with their zoning rules. Click here to read the Commonwealth Court’s decision.
Pennsylvania Senator Joseph Scarnati, and Representative Samuel H. Smith filed an Application to Intervene in August of 2012 following the Commonwealth Courts decision. It was originally filed with the Commonwealth court and then resubmitted to the PA Supreme Court.
It was officially denied by the PA Supreme Court on January 21, 2014.
THE APPEAL
Almost immediately following the Commonwealth Court’s decision, the Corbett administration filed an appeal with the Pennsylvania Supreme Court.
The Pennsylvania Supreme Court was short one member. The missing member was Justice Jane Orie who was under suspension pending campaign fraud charges. The political affiliation of the remaining justices was 3 Republicans and 3 Democrats.
Oral arguments on the appeal began in October of 2012. At the conclusion of oral arguments, no official decision was reached by the PA Supreme Court. It was reported the decision was deadlocked at a 3-3 vote. This meant the Commonwealth Court’s decision would remain in effect until an official ruling could be made.
Almost a year to the date Corbett signed Act 13, the suspended Court Justice, Jane Orie was found guilty on one count of campaign fraud in February 2013. By the spring of 2013, Orie had officially resigned and this left her seat officially open. Corbett nominated Judge Correale Stevens, and by July 2013 the PA Senate confirmed him.
At that time there was no date or news of when or if the PA Supreme Court would issue an official ruling on the Act 13 appeal.
RELATED:
- ACT 13 – 32 Amici go to Pennsylvania Supreme Court
- Frack Anywhere Zoning - Tie Breaker
- Frack Anywhere Zoning Decision Soon?
The DO-OVER
It was generally assumed by both sides of the natural gas issue that when the PA Supreme Court revisited the Act 13 appeal it would strike down the lower court’s decision should Stevens be allowed to review and vote. Stevens is a Republican and this made the PA Supreme Court alignment 4 Republicans and 3 Democrats.
In an effort to ensure Stevens could vote, the Public Utility Commission and Department of Environmental Protection of Pennsylvania petitioned the court to rehear arguments. This petition was submitted one week after Stevens was officially sworn in as a Justice. A joint request was filed on August 6, 2013 to resubmit the case before all seven members.
Such a request is rarely granted, and the petition was eventually denied. This still left the PA Supreme Court in a 3-3 deadlock.
SHOCKED
On December 19, 2013 the PA Supreme Court issued its official ruling shocking both defenders and those opposed to Act 13. The PA Supreme Court upheld the lower court’s decision and officially struck down the provisions which stripped local zoning powers.
In affirming the municipalities’ standing to bring the Act 13 challenge, which was challenged by the state’s attorneys, Chief Justice Castille wrote in the 162-page majority decision that “[t]he protection of environmental and esthetic interests is an essential aspect of Pennsylvanians’ quality of life and a key part of local government’s role.”
The decision also notes “how remarkable a revolution is worked by this legislation (Act 13) upon the existing zoning regimen in Pennsylvania, including residential zones,” and it questions whether the General Assembly can pass laws inconsistent with the constitutional mandate to protect the environment.
“By any responsible account,” Chief Justice Castille wrote, “the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and the future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.”
The Decision and concurring opinion can be found at:
- http://www.delawareriverkeeper.org/resources/Reports/Opinion%20J-127A-D-2012oajc.pdf
- http://www.delawareriverkeeper.org/resources/Reports/Concurring%20Opinion%20J-127A-D-2012co.pdf
More than just the zoning provision was ruled upon. According to the Delaware Riverkeeper Press Release: (emphasis added)
The Pennsylvania Supreme Court also reversed Commonwealth Court’s finding that the Delaware Riverkeeper Network lacked standing in this case. Specifically, the court found that DRN’s members engendered “a substantial and direct interest in the outcome of the litigation premised upon the serious risk of alteration in the physical nature of their respective political subdivisions and the components of their surrounding environment. This interest is not remote.” Opinion at 21-22. Furthermore, the court also found that Maya van Rossum, as the Executive Director of the Delaware Riverkeeper Network, also has standing in her official capacity to represent the membership’s interests.” Opinion at 22. The ruling therefore sets important precedent for what immediate interest or harm environmental organizations and their members need to demonstrate in order to properly establish standing.
Additionally, in a reversal of the findings of the Commonwealth Court, the Pennsylvania Supreme Court found that Dr. Khan satisfies standing requirements. The court noted that “existing jurisprudence permits pre-enforcement review of statutory provisions in cases in which petitioners must choose between equally unappealing options and where the third option, here refusing to provide medical services to a patient, is equally undesirable.” Opinion at 25. In other words, provisions of Act 13 put Dr. Khan in the untenable and objectionable position of choosing between violating Act 13’s confidentiality agreement and “violating his legal and ethical obligations to treat a patient by accepted standards, or not taking a case and refusing a patient medical care.” Id. Therefore, Dr. Khan’s interests were indeed “substantial and direct…not remote,” and conferred standing. Opinion at 26. The Court remanded Dr. Kahn’s case to the Commonwealth Court for further proceedings.
Dr. Mehernosh Khan, was a plaintiff as part of the original legal challenges to Act 13. He was challenging the medical gag provision of Act 13 which stated medical providers must sign a confidentiality agreement in order to find out what chemical were used in fracking. The Commonwealth Court decided in July of 2012 that Khan did not have standing.
Following the Khan decision, another doctor in Pennsylvania, Dr. Alfonso Rodriguez, filed a lawsuit challenging the medical gag.
Click here for a copy of the lawsuit.
In October 2013 US District Judge A. Richard Caputo ruled that Rodriguez did not have standing, and dismissed the lawsuit.
It is unknown at this time if the decision will prompt Khan and/or Rodriguez to refile.
ANOTHER DO-OVER
Before the ink was barely dried on the Supreme Court’s decision; the Corbett administration filed an Application for Reconsideration.
A news release from the state Office of General Counsel said the 162-page Supreme Court decision written by Chief Justice Ronald Castille “made its own sweeping factual findings” that were unsupported by the case record.
The release, attributed to James Schultz, general counsel to the governor, also said the decision is “a stunning departure from the historical practice of that Court, and an unrestrained venture into a fact-finding role that the Court always has insisted is not its proper place in the judicial system.”
In filing for the appeal, the state’s Public Utility Commission and Department of Environmental Protection asked that the case be remanded or returned to Commonwealth Court for development of an evidentiary record. The DEP also asked the Supreme Court to reconsider its decision to declare unconstitutional certain provisions protecting public lands and waters of the commonwealth.
This was seen as a last ditch effort by the Corbett administration to salvage ACT 13 and please the fossil fuel industry.
On January 14, 2014 six municipalities and an environmental group filed their answer to the state’s application for reconsideration of the Pennsylvania Supreme Court’s December 19, 2013 decision.
In their answer, the challengers argue that the state defendants had consistently stated that “this matter did not require the Court to make factual findings to determine Act 13’s constitutionality. It is only now, after the [Court’s] thorough analysis of the plain language of Act 13 and of Section 27, that [the state] Agencies claim that factual matters require further development in order to change the outcome in their favor.” The challengers state that the Court’s finding that Act 13 was not properly balanced against Section 27’s protections on the public’s right to clean air and pure water was correct and that the Court should not reconsider its decision.
THE SPIN
Responding to the PA Supreme Court’s decision, David Spigelmyer, the newly appointed President of the Marcellus Shale Coalition and former Vice President of Government Relations for Chesapeake Energy, claimed this decision:
“….unravels some of the environmental protections created by the bipartisan regulatory modernization law and misses an opportunity to establish a standard set of rules that govern responsible shale development — resulting in weaker environmental regulations and a less competitive business climate.”
Related: Marcellus Shale Advisory Commission’s Swivel Chairs
One of the major concerns with fossil fuel drilling in Pennsylvania is that of water contamination of not only private water wells, but also of streams, creeks and other nearby waterways.
Act 13 originally called for a minimum setback of 300 feet from water sources for unconventional gas wells that we are seeing drilled in the Marcellus Shale via the process of high volume slickwater horizontal hydraulic fracturing. The setback distance is a minimum of 100 feet for conventional oil and gas wells. Conventional wells are typically vertical drills only.
The question of setback has been one of contention. What is a safe distance? For some 300 feet is adequate, for others there is no safe distance.
With regards to the ACT 13 and the 300 ft setback, a driller may request a waiver with the Pennsylvania DEP and drill closer to a water source. Whether it was under Act 13 or other regulations having to do with setbacks, The Pennsylvania Department of Environmental Protection says it has never denied a request by a Marcellus shale gas driller to circumvent the stream setback regulations in a recent law.
According to the DEP, less than 10 percent of permit applications seek waivers.
The court found this to be unacceptable.
“Even these modest restrictions can be averted by the gas industry,” wrote Chief Justice Ronald Castille in the majority opinion.
In practice, it wouldn’t matter if the setback was 300 ft or 300,000 ft, the DEP would grant a waiver.
The groups who challenged the constitutionality of Act 13 took issue with the section allowing the DEP to grant waivers, not the setbacks themselves. The court found those sections to be inextricably linked and struck them down together.
Delaware Riverkeeper, Maya van Rossum, was among those challenging the law.
“The minimal buffers that were included in Act 13 were just that,” she says. “They were minimal and amounted to a giveaway to the industry.”
Gov. Corbett has requested the fossil fuel industry to continue to honor the setbacks as stated in Act 13. The state’s major gas industry trade groups have all agreed to continue to follow the setbacks, including the Marcellus Shale Coalition, the Pennsylvania Independent Oil and Gas Association, and the Associated Petroleum Industries of Pennsylvania. The trade groups themselves do not do the drilling, nor do they file for permits or waivers. The fossil fuel corporations do the permit and waiver filing and do the drilling and whether they follow the 300 ft rule is yet to be seen.
Click here for the portion of Act 13 dealing with setbacks from waterways. The highlighted sections were struck down by the court.
KRANCER CHIMES IN
Michael Krancer resigned as DEP Secretary on April 15, 2013. He is now head of Blank Rome’s Energy, Petrochemical & Natural Resources Practice. Blank Rome LLP is listed as a member of the Marcellus Shale Coalition. With regards to natural gas, Blank Rome describes itself as:
The attorneys and professionals of Blank Rome LLP and Blank Rome Government Relations LLC are uniquely positioned to counsel and represent shale oil and gas exploration, production, and mid-stream companies regarding all of their business needs. With offices in Philadelphia, New York City, and Washington, DC, Blank Rome is strategically located to meet the needs of shale developers and operators in courtrooms, boardrooms, and before state and federal government.
In a press release, Krancer laments over the Act 13 decision: Robinson Township Decision: A Few Winners and Lots of Losers – January 17, 2014 | Michael L. Krancer and Margaret Anne Hill
Despite the “few winners and lots of losers” title, Krancer outlines how everyone is a loser with the focus on money, profits, and yes, jobs.
John Trallo of Davidson Township replied to Krancer:
You write this article purporting to be a “neutral observer”. Seriously? Your failure to identify yourself as a “named party in the lawsuit” whose side ultimately lost — in addition to being a former member of the Corbett administration who left in disgrace — speaks volumes about the Corbett administration and the type of character, or lack of character, of the persons associated with them possess.
How can you write this article and not identify yourself as a “losing party” in the Robinson Township action? This is blatantly disingenuous, and hardly “neutral”.
You filed a brief on the part of the DEP!
You dare to state that those “canonizing the decision as being the greatest ring for freedom since the fall of the Berlin Wall. Those statements have been opportunistic, political and self-serving”.
Opportunistic – but only in the sense where the people of Pennsylvania now have the “opportunity” to exercise their constitutional right to determine what is best for their communities… as they should.
Political – not really. No need for it to be political with Corbett’s approval rating on par with say, Jerry Sandusky’s, and still falling.
Most of the republicans who supported Act 13 have already shifted into ‘damage control mode’ to protect their position in this election year saying [I'm paraphrasing]: “Well, I knew Act 13 was too overreaching, and knew some provisions wouldn’t stand up, but I thought it might be a step in the direction for stricter regulations.” (That’s their new mantra to save face with their constituents and their ‘associates’ in the gas industry)
Self-serving – damned right. The Corbett administration isn’t looking out for the people’s best interest. Neither is the DEP. Therefore, we, the people of Pennsylvania must look out for our own best interest.
The egregious legislative bullying by the Corbett on behalf of the oil and gas industry pushed the political pendulum way too far with Act 13 by removing local zoning that could not determine the “if or the how” of oil and gas development, but did give the people the authority to determine the “when and the where” it could be developed, medical gag-orders, and effectively denying our right to clean water, clean air, and the right to maintain a sense of place in our rural and agricultural communities.
Now, the people have been awakened and the pendulum is swinging back the other way.
After Act13 was passed, we were told by some of the political gas shills that: “Act 13 is now the law of the land, and the people just have to get over it.”
Well, Mr. Krancer, the key provisions that were clearly designed to give the oil and gas industry more rights than the people of PA have been righteously, justly, and wisely thrown out.
Of course, the Corbett administration, and those like yourself will have to express public outrage, cry foul, and call for a reconsideration to appease your oil and gas “clients”.
You can consider your objection to the Supreme Court’s ruling noted, albeit publicly dismissed, but I’m sure you effort is appreciated by the administration.
The rights of the people of Pennsylvania to best protect themselves from the wholesale industrialization and the liquidation of our natural resources have been restored.
So…. Get over it.
Whether it’s Krancer or Spiglemeyr or another spokesperson for the fossil fuel industry, when they talk about protecting the environment, they are talking about the business environment and the bottom profit line.
©2014 by Dory Hippauf