On Friday, February 21, 2014, the Pennsylvania Supreme Court, in a 5-1 majority Order, denied the Commonwealth’s motion for reconsideration of its December 19, 2013 Robinson Township decision. The Order, which was expected because Courts very rarely grant motions for reconsideration, denied the Motion without further discussion. Justice Saylor filed a dissenting statement. Accordingly, the case is now back before Commonwealth Court to consider a number of specific issues that the Supreme Court remanded for further consideration. These remand issues are as follows:

1. Medical Professional “Gag Rule”

Section 3222.1(b)(10) and (11) (the so-called “gag rule”) were challenged by a medical doctor, Dr. Khan. These provisions provide for disclosure to health professionals of trade-secret fracking information when necessary for diagnosis or treatment of a person exposed to the chemical, but only if the health professional signs a non-disclosure agreement. Dr. Khan argued that the restrictions on obtaining and sharing information with other physicians impede his ability to properly diagnose and treat patients. Commonwealth Court dismissed Dr. Khan’s action on grounds that the matter was not ripe for review because there was no actual case or controversy presented. The Supreme Court disagreed and remanded for consideration on the merits of Dr. Khan’s claim.

If Dr. Khan is successful in his case on the merits of his claim, then oil/gas operators may be required to turn trade secret chemical information to health professionals when needed for treatment or diagnosis whether or not the health professional would agree to keep the information secret.

2. “Special Law” Issue

Commonwealth Court had dismissed the citizen’s assertion that the provisions of Act 13 are unconstitutional as a “special law,” violating Art 3, §32 of the Pennsylvania Constitution. This constitutional restriction prohibits laws that single out persons or industries for special treatment when they could be covered by general laws.
Commonwealth Court had dismissed the claim without a hearing on the merits of the claim, holding the law’s treatment of the oil/gas industry differently than other extraction industries was reasonable as based on real differences. It will now have to hear the evidence relating to this issue and rule on the merits of the claim.

3. Unlawful Taking Issue

This issue involves only §3241 of Act 13, which gives private corporations the right to appropriate interests in real estate located in natural gas storage areas. The Township claims that this section authorizes an unconstitutional taking of property by a private party. Commonwealth Court had dismissed this claim for lack of jurisdiction based on grounds that no actual takings of property were involved and based on a finding that the exclusive provisions of the Eminent Domain Code were not followed.

The Supreme Court reversed on grounds that the provision was appropriate for preenforcement review in a declaratory judgment action. In addition, the court held that the Eminent Domain Code was inapplicable since a notice of condemnation had not been served. Accordingly, this issue was remanded to Commonwealth Court for a hearing on the merits of the Township’s claim.

Section 3241 allowing limited condemnation of private property for gas storage purposes is important to the oil/gas storage industry and will now be reviewed on the merits of the citizens’ claim.

4. Severability

This issue concerns whether various provisions of the Act are severable from those sections ruled unconstitutional. If they are not severable, they are subject to being enjoined by the Court. The Supreme Court Opinion identified several sections which it determined were not severable and were, therefore, enjoined. As to other potential provisions which may not be severable, the Court stated:

“We recognize that, in light of the numerous and diverse nature of the constitutional challenges, the parties were not in an optimal position to present arguments on the severability of the various provisions ultimately held to be unconstitutional. In this Opinion, we decide this issue in part, to the extent that its application is obvious and necessary to provide direction to the parties going forward. Nevertheless, we believe that further inquiry into the continued viability of the entire statute or of discrete provisions, including additional provisions deemed unconstitutional on remand, if any, and guided by additional, targeted briefing from the parties, is salutary and necessary.”

Given the scope of this remand, it is possible that other sections of Act 13 will be enjoined after the remand proceedings or that the entire Act could be stricken on severability grounds.