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March 11th, 2016 
Awake Goy 
Print FriendlyAbove Photo: A Seneca Resources drilling rig completes the fourth of six wells at a Marcellus Shale gas well pad in Shippen Township, Cameron County. Seneca Resources gives a tour of Marcellus Shale gas drilling operations in Elk and Cameron counties in northern Pennsylvania, May 14, 2015. Dan Gleiter, PennLive.com
As oil and gas drillers continue to pull up rigs and close operations in Pennsylvania, the state Supreme Court is asking whether the industry was given special treatment during the shale boom.
The court on Wednesday heard two cases that date back to the first half of the Corbett administration and challenge Act 13, a 2012 law that overhauled oil and gas regulations.
In the first case, Robinson Township v. Commonwealth, there are four main issues:
- Notification. If you are a state resident who has a private water well, you don’t have to be notified of a toxic spill at an industry site that may affect your drinking water, according to a section of Act 13. The Pennsylvania Department of Environmental Protection only has to notify public water users. Residents using private water wells have to rely on industry to tell them if there’s been a spill.
There are more than 3 million Pennsylvanians who rely on private wells for their drinking water, and many of them live in the rural areas of the state where oil and gas drilling takes place.
Hundreds of contamination cases were reported after spills, and they’ve only affected private water sources, according to attorney John Smith.
The state’s attorney, Sean Concannon, argued that the state regulates public water sources, not private wells, and that’s why the act is written that way. DEP doesn’t know where all the private wells are and couldn’t notify everyone, he said.
But another state law requires drillers to identify all water sources, including private wells, within 3,000 feet of a well pad. DEP has that information, but it’s not searchable in any kind of database, Concannon said.
“The problem is when spills occur, they’re not just limited to well sites. They can occur anywhere,” he said.
There are thousands of acres where spills can happen, and DEP wouldn’t be able to notify all of those who may be affected because the agency doesn’t know who they are, Concannon said.
Justice Debra Todd said the more than 3 million Pennsylvanians excluded by the notification law is not a small number.
“It seems to me the state’s interest here is in protecting the drinking water,” she said. “That’s why I’m having trouble with the public-private distinction.”
Justice David Wecht, in his first week on the Supreme Court bench, asked how the difference is “a rational classification that we can uphold?”
That’s a question for the General Assembly, which created and approved the policy, according to Concannon.
But that’s not the answer Wecht was looking for.
“So rural folks have to wait until they or their animals grow three heads” before learning about a spill or contamination?, he said.
DEP does notify private well owners when state regulators believe there’s a threat, Concannon said.
- Medical gag order. Two sections of Act 13 prohibit doctors and other health care professionals from disclosing information that oil and gas companies consider to be trade secrets. Attorneys who oppose the statute say it gives the industry special treatment.
Wecht pointed out that, according to the act, doctors couldn’t discuss symptoms at a conference or share information in a way that might help them learn more and offer better treatment.
The act exposes health care professionals to liability by hampering their ability to stay up on science, he said.
“We’re asking doctors to figure this out on the fly,” attorney Jordan Yeager said.
Wecht told Yeager even if the statute represents “horrible policy,” the Supreme Court would need more than that to strike it.
Yeager argued that no other industry – even those with trade secrets – has this special treatment in Pennsylvania.
Howard Hopkirk, state counsel from the Office of Attorney General who argued in favor of the act, said the appellants calling it “a medical gag” rule reminded him of the emperor’s new clothes, implying and ignorance and misuse of the term.
“That’s cute, but I don’t think it flies,” Justice Max Baer said to him. “We don’t need special legislation for this industry.”
Rules governing other industries specifically allow physicians to share all information with a patient when necessary.
Newly elected Justice Christine Donohue asked whether the Act 13 statute is “absolutely clear” that a physician can share that information with a patient.
“We think the language is there for treatment,” Hopkirk said.
“Has the Legislature granted preferential treatment to any other industry?” Todd said.
“Not in this specific way,” Hopkirk said.
- Eminent Domain. If a gas company has rights to a majority of a Pennsylvania resident’s land, Act 13 allows it to take the final portion through eminent domain for gas storage wells. Attorney Jonathan Kamin argued private land taken through eminent domain has to be used for the public good, and the statute doesn’t require companies to give anything to the public once it has been taken.
“The whole industry is a public benefit to the Pennsylvania consumer,” Baer said.
The industry receives its eminent domain power by being classified as a public utility.
“What makes it a public utility?” Wecht said.
“Regulation,” said attorney Matthew Haverstick, who argued on behalf of the Pennsylvania Public Utility Commission.
“It’s problematic if the end result benefits private, not public,” said Chief Justice Thomas Saylor.
If companies store gas on private land and sell it outside of Pennsylvania or export it, questions arise, justices said.
“What is public? Pennsylvania or citizens of the world?” Donohoe said.
“I think a broad definition of public is appropriate,” Haverstick said.
- Severability. The Supreme Court has already struck down parts of Act 13. Because of those decisions, there are some other sections of the act that no longer apply, attorneys said.
Attorneys previously won arguments that zoning decisions should be made locally instead of statewide.
Some parts of the original Act 13 allowed the PUC to withhold impact fees if the agency found townships did not comply with local ordinances in the act.
Funds have only been withhold against four townships, and they are four of the plaintiffs in this case: Cecil, Robinson, Mount Pleasant and South Fayette.
Commonwealth Court in July 2014 said the law couldn’t stay in place without uniform zoning, which also got kicked out of the act by the court.
PUC appealed that decision.
The local governments “want conditional money without any conditions,” Haverstick said.
In Pennsylvania Environmental Defense Foundation v. Commonwealth, attorney John Childe Jr. argued the state acted illegally when it moved gas royalties from the Department of Conservation and Natural Resources into the general fund.
The funds should’ve stayed with the conservation department to better protect state residents’ constitutional right to clean air and water, he said.
Moving the money failed to maintain state lands for the public’s benefit, which violates the state constitution, Childe said.
“That’s a policy choice of the Legislature and executive branch, who were elected,” Saylor said. “If people don’t like it, they can (choose) not (to) elect them. You’re asking the court to make a policy judgment.”
After Gov. Tom Wolf took office in January, he stopped new drilling leases on state lands.
Source Article from https://www.popularresistance.org/pennsylvania-supreme-court-hears-arguments-over-fracking-favoritism/
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