On September 28, 2016, the Pennsylvania Supreme Court (Court) decided the following issues regarding Act 13, which is a comprehensive law that regulates the oil and gas industry and repealed parts of the Oil and Gas Act of 1984 in the Commonwealth of Pennsylvania:
1. Sections 3302 and 3305 – 3309 of Act 13 are void because Sections 3303 and Sections 3304 were held unconstitutional in Robinson II
Section 3202 of Act 13 “preempts and supersedes the regulation of oil and gas operations” by restricting local municipalities from executing any ordinance through the Municipalities Planning Code or the Flood Plan Management Act that enforces requirements or limitations on the same oil and gas operations regulated under Chapter 32 of the Act. The Court affirmed the Commonwealth Court of Pennsylvania’s (Commonwealth Court) order finding that Sections 3302 and 3305 – 3309 are void due to the previous holding that Sections 3303 and 3304 are unconstitutional.
2. Sections 3222.1(b)(10) and 3222.1(b)11 violate Article III, Section 32 of the Pennsylvania Constitution
Sections 3222.1(b)(10) and 3222.1(b)11 limit the publication to any “health professional” by a service provider, vendor or well operator of the identity and amounts of chemicals that are asserted to be trade secrets or confidential proprietary information. These sections also restrict health professionals’ ability to orally request such information unless the professional determines that a medical emergency exists and the information is necessary for the emergency treatment. In reversing the Commonwealth Court, the Court enjoined the enforcement of these Act 13 sections. The Court held that restricting health professionals’ access to the information regarding the chemicals used in the hydraulic fracturing process contravenes the exclusions against the enactment of “special laws” as defined by Article III, Section 32 of the Pennsylvania Constitution.
3. Section 3218.1 of Act 13, as it is written, violates Article III, Section 32 of the Pennsylvania Constitution
Section 3218.1 of Act 13 requires the Department of Environmental Protection to notify public water facilities of a chemical spill or waste spill associated with the fracking process but provides no notification requirement to the owners of private wells. The Court held that the owners of private wells should also be notified of these spills and no notification to the private well owners violates Article III, Section 32 of the Pennsylvania Constitution. The Court provided the General Assembly 180 days to draft language that does not violate the Pennsylvania Constitution on this issue.
4. Section 3241 of Act 13 violates the Fifth Amendment of the United States Constitution and Section 10 of the Pennsylvania Constitution
Act 13, Section 3241 allows any private corporation that transports, sells or stores natural gas or manufactured gas in Pennsylvania to take (eminent domain) subsurface storage reservoirs from private property owners. The Court held that the application and enforcement of Section 3241 permitted the taking of private property by a private entity for a private purpose and reversed the Commonwealth Court.