Court to hear oral arguments in Act 13 case

Marie Cusick

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Marie Cusick was the Harrisburg reporter for StateImpact Pennsylvania.

May 14, 2014 | 10:15 AM

The Pennsylvania Commonwealth Court is set to hear oral arguments today in the ongoing legal battle over the state’s 2012 oil and gas law, known as Act 13.
The state Supreme Court struck down several provisions of the law in December– including portions that restricted the ability of local governments to zone oil and gas development.
As StateImpact Pennsylvania has previously reported, much of the law will remain intact, including the impact fee it levies on natural gas drillers. The Commonwealth Court is only examining a narrow set of issues:
Is the “doctor gag rule” legal? Language in Act 13 has some medical professionals concerned they could get in trouble for disclosing chemical trade secrets associated with gas drilling. The Commonwealth Court has to decide whether this is constitutional.
Can private companies use eminent domain? Part of Act 13 allows a private corporation to use the state’s eminent domain power to take private property for the storage of natural gas. The court has to decide whether this constitutes a public purpose, which would permit the taking of private property.
Are portions of Act 13 a “special law” crafted specifically for the oil and gas industry? Act 13 requires the state Department of Environmental Protection to notify public water suppliers about pollution incidents, but not private well owners. The court is looking at whether this makes it a so-called “special law,” tailored for the oil and gas industry, which would be prohibited under the state constitution. The court is also looking at whether the “doctor gag rule” constitutes a special law.
Given that some of the zoning sections were thrown out by the state Supreme Court, to what extent do other sections remain meaningful? Can they stay or should they go? The court is looking specifically at several sections which give the state Public Utility Commission the authority to review local zoning ordinances and withhold impact fee money to municipalities. The question now is whether these sections remain viable, given that the other zoning sections were tossed out.
More from the Pittsburgh Post-Gazette:

In briefs filed to support the PUC’s continued role in reviewing ordinances, the Commonwealth and several oil and gas organizations said the commission still can offer advice to municipalities and hear challenges to their ordinances even though the uniform zoning provisions of the law were thrown out.
The PUC’s review is “essential” to determine if local governments are eligible to receive their share of the impact fee, the commission wrote.
But the challengers — who include several municipalities, local officials, environmental groups and a doctor — said the state and its industry supporters are simply looking for “a backdoor method” of imposing the law’s remaining setback buffers around drilling operations as a cap rather than a minimum, thereby limiting local governments’ say in where operations can take place.