From the Pocono Record
The Pennsylvania Public Utility Commission said it has accepted the state Supreme Court’s ruling that struck down a number of provisions to the oil and gas law.
The high court ruled last week unconstitutional the use of eminent domain for natural gas storage facilities, and the exclusion of private wells from notification of hazardous spills.
The industry no longer has a fast track to commonwealth court when it comes to challenging local zoning ordinances. And the Pennsylvania Public Utility Commission — or PUC — will have no role in examining local zoning decisions, according to a review of the decision by State Impact, a reporting project of National Public Radio.
“The Pennsylvania Supreme Court has ruled that sections of Act 13 related to PUC review of local zoning ordinances regulating oil and gas operations are no longer valid,” PUC officials said in a statement.
The PUC reviewed the court’s ruling and its chairman said the commission accepts the decision “without reservation” and will continue to carry out its statutory obligation under Act 13 to collect and distribute unconventional gas well impact fees, according to the statement.
“The PUC has always sought to be an independent and unbiased agency, focused on ensuring safe and reliable utility service while also safeguarding the public interest,” said Commission Chairman Gladys M. Brown.
“The court has spoken very clearly on this matter and the commission will continue to focus on its key responsibility under Act 13, which is the collection of impact fees and the distribution of those funds to counties and municipalities across Pennsylvania,” Brown said.
Many are calling the court’s decision a win for environmentalists and municipalities.
“It’s great, and it’s great for the residents of Pennsylvania to have the courts recognize that their rights matter more than the gas industry’s power in Harrisburg,” said Jordan Yeager, the attorney who argued for the towns and environmental groups involved in challenging the law.
The court’s 88-page opinion repeatedly stressed the original law had serious flaws, Yeager said. “It’s a great vindication for citizens’ constitutional rights. The court said throughout the opinion, that Act 13 and these provisions were a special law that simply benefited the gas industry.”
Act 13 of 2012 — better known as the Impact Fee — was signed into law by Gov. Tom Corbett on Feb. 14, 2012. The Impact Fee provided for the imposition of an unconventional gas well fee, and the distribution of those funds to local and state governments.
The law also contained provisions regarding how the impact fee may be spent with a significant portion of the funds collected earmarked for direct distribution to local governments to cover the local impacts of drilling.
Also under the statute, a county could impose the fee if unconventional gas wells are within its borders and it passes an ordinance within 60 days of the effective date of Act 13. A county that did not pass an ordinance imposing a fee was prohibited from receiving funds.
“We’re disappointed in aspects of the court’s ruling,” The Marcellus Shale Coalition president David Spigelmyer in a statement.
“(The ruling) will make investing and growing jobs in the Commonwealth more – not less – difficult without realizing any environmental or public safety benefits,” Spigelmyer said.
“Despite this ruling, our industry remains deeply committed to adhering to the high bar set by Act 13, a commonsense bipartisan law that modernized our oil and natural gas regulatory framework and serves as a national model for other states,” he said.
Much of the decision was based on the state’s environmental rights amendment.
However, the court also sent some challenges back to the lower courts, and those issues have been working their way back to the Supreme Court.
By striking down the local zoning restrictions in 2013, issues over the role of the PUC remained because the original law made the PUC the decider on whether local zoning rules violated Act 13.
The PUC will have no such role.
The law was also supposed to make things easier for doctors and patients seeking hazardous material information in case of exposure, in part, by requiring drillers to list the chemicals used to produce oil or gas on a public website that doctors could access.
But the website is not required to list all the chemicals used; it leaves off those considered to be trade secrets.
These are ingredients that a company says it has to keep secret in order to maintain an edge over its competitors. Doctors could only get the trade secret chemical names and information if they signed a confidentiality agreement and agreed not to share that information. That caused an uproar in the healthcare community and one doctor filed suit, NPR reported.
The ruling eliminates the required non-disclosure agreement because the court reasoned that this type of requirement only applied to the gas industry, thus it was unconstitutional.
This could mean the healthcare community would now have no option for gaining that information. But in briefs filed by the plaintiffs, they explain that other state and federal statutes would grant them access to the trade secrets in cases of exposure.
Act 13 requires the Department of Environmental Protection to notify operators of public water supplies in the event of a nearby spill related to gas drilling.
The bill left out notification to private well owners, which provides water to about 3 million residents of the state, many of whom live in shale drilling areas. The court ordered the legislature to fix this part of the law, and require notification to private well owners.
John Dernbach, an environmental law professor at Widener University, called the ruling a “home run” for citizens of Pennsylvania.
“The citizens did a lot better in this case than I thought they would,” he said. “Everything the citizens sought to be declared unconstitutional, was declared unconstitutional.”
