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Major Victory: Act 13’s Zoning Restrictions Struck Down by PA Supreme Court!

December 20, 2013

Yesterday, after over a year of deliberations and appeals, the Pennsylvania Supreme Court upheld the Commonwealth Court ruling against Act 13’s restrictions on municipalities’ ability to plan and protect their landscape and properties in a 4-2 decision. Under Act 13, municipalities had to allow fracking infrastructure within a few hundred feet of schools, non-leased farms, and homes, no matter what the towns’ residents preferred.

Act 13’s “pre-emption clause,” as it came to be called, literally threw Pennsylvania municipalities’ environmental and  democratic rights under the bus.

In July of 2012, the Commonwealth Court had ruled those restrictions “unconstitutional and unenforceable” under Pennsylvania’s Constitution, but Governor Corbett and the industry, of course, appealed. The Pennsylvania Supreme Court heard arguments over a year ago, in October 2012, and had been in deliberation until yesterday.

This is a huge, long-awaited victory for everyone who treasures Pennsylvania’s landscape, the environment, public health, and their constitutional rights!

Last September, the City of Philadelphia took a stand against Act 13’s pre-emption clause, bringing the local governments in Pennsylvania taking an active stand in favor of declaring it unconstitutional to 89. The complete list of municipalities, and over 40 other entities, taking that stand is here: Wave of Dissent.

In their Decision, the Justices had harsh words for Corbett and the fracking industry’s attempts to take the rights and powers of local government and individuals, as well as the industry’s destruction of our environment, health, and democracy.

“As the citizens illustrate, development of the natural gas industry in the Commonwealth unquestionably has and will have a lasting, and undeniably detrimental, impact on the quality of these core aspects [life, health, and liberty: surface and ground water, ambient air, etc.] of Pennsylvania’s environment, which are part of the public trust.” Opinion at 117.

“By any responsible account, the exploitation of the Marcellus Shale Formation will produce a detrimental effect on the environment, on the people, their children, and future generations, and potentially on the public purse, perhaps rivaling the environmental effects of coal extraction.” Opinion at 118.

The Justices concluded that the Act forced some citizens to bear “heavier environmental and habitability burdens than others” in violation of Section 27’s mandate that public trust resources be managed for the benefit of all the people. This is key to the Decision and key to our work. Some supporters of fracking, often well-insulated from fracking themselves, claim that fracking opponents only fight to preserve their own backyards. In reality, we fight for the rights and health of all people. We want to keep these toxic, destructive industries out of everyone’s backyards.

To read more analysis and castigation, see Delaware Riverkeeper Network’s PDFs of the Decision and concurring opinion.

But wait, there’s more good news! Gag order reconsidered:

While this historic decision would have been enough, the Supreme Court’s ruling went even further than the Commonwealth Court ruling. The lower court had found that Delaware Riverkeeper Network, Delaware Riverkeeper Maya Van Rossum, and Dr. Mehernosh Khan did not have standing as plaintiffs in the case. Delaware Riverkeeper Network and the Delaware Riverkeeper fought Act 13 on behalf of local residents, while Dr. Khan pre-emptively challenged Act 13’s gag order on physicians attempting to treat people suffering the health impacts of fracking.

Under the Act 13 gag order, doctors are able to beg fracking corporations for information about the chemical composition of fracking fluid to which a sick patient has been exposed, and the corporations must provide that information — but only if the doctor signs a gag order promising never to share that information with anyone — journalists, physicians, neighbors, public health advocates, and possibly not even with the patient.

Further, fracking corporations are NOT obliged to disclose any of the other toxic contaminants in flowback because those are “naturally occurring,” so even if a corporation knows that deadly levels of arsenic, Radium 226, etc. are in flowback, and even if the patient exposed to flowback is literally dying, the corporation is not obliged to share that information about its own flowback to save the life of the patient.  The gag order thus both fails to protect the individual patient, and prevents physicians from warning their community about health impacts occurring from “proprietary”  chemicals used in shale gas drilling.

The lower court ruled that since Dr. Khan had not yet faced the dilemma of being unable to disclose that information, he did not yet have standing to challenge the rule. However, the State Supreme Court overturned that judgment, thereby sending Dr. Khan’s case back to the lower court (the Pennsylvania Commonwealth Court) for reevaluation.

Good News All Over: Relentless Persistence Works! 

Victory in Franklin Forks

Summary from Iris Marie Bloom:

This week began with a victory of David vs. Goliath proportions when three families from Franklin Forks, in Pennsylvania’s beautiful, but badly fracked, Susquehanna County, joined with grassroots organizers in resisting the removal of their clean water tanks — called water buffaloes. Those water buffaloes are the only protection the families, including Tammy Manning’s family, have from  water contaminated by shale gas drilling.

In Franklin Forks, the industry bowed to the power of the movement for justice and environmental protection. With tactics ranging from a planned nonviolent civil disobedience action, to persuading two gubernatorial candidates to intervene on the families’ behalf, to calling a press conference on-site at the time and place when the life-saving equipment was to be removed, the movement won. The clean water tanks stayed. StateImpact PA reported on this important victory here.

Similarly, the Supreme Court decision yesterday is a vindication of the point of view that activists from all over Pennsylvania and beyond have been tirelessly advocating for three years, ever since Act 13 was first introduced. The people have suffered — the people have gotten up at 4 AM to travel to testify, the people have given up family time, the people have worked and testified and analyzed and met and lobbied and demonstrated and risen up; and the people have won.

In Latin America, this kind of dedication is called “Firmezza Permanente,” which translates to “Relentless Persistence” in English. Up against the richest industry in the world — oil and gas — nothing less than Firmezza Permanente is required to win. With two major victories in Pennsylvania in one week, it’s clear that as Nelson Mandela knew, and as Martin Luther King said, “the moral arm of the universe is long, but it bends towards justice.”

  1. December 20, 2013 4:42 pm

    For a tad more and why it matters, please see: Let’s Make 2014 the Year The Natural Gas Industry Became an Endangered Species

  2. December 20, 2013 5:15 pm

    In an endless display of bad fracking news, some LIGHT in this long long tunnel.I hope this ruling gives my NY Supremes some back bone to uphold home rule. One thing to be cautious about- the TPP trade partnership- good ol’ abury will put up stakes, put a Chesapeake office in Singapore and be allowed to frack the hell out of us, or sue us trying. Call your reps and demand NO FAST TRACK for the TPP.
    Cheers to the endangered species post.

  3. December 21, 2013 1:51 am

    The Supreme Court has defined the law. Art 1 Sec 27 of the Pa Constitution is the law. All of the people have rights, not just the wealthy. What we are experiencing with our state government is tyranny. E.I. Taxation without representation.[ ALEC.Com /Legislation ] is the website to review for the root of the EVIL. There breeds all of the sample laws about Fracking and taking over each state. Gag orders for Doctors, elimination of workers associating ( unions ), and elimination of free speech. ETC. The ALEC directors in the Pa legislature are the ones that introduced Act 13. Also, they swore an oath to support ALEC . How do you serve 2 masters when you get paid to defend and to obey the Pa Constitution? Each is a trader to one. .Check the list to throw out of office this coming election. Primaries are important. Be sure to vote.

  4. December 21, 2013 10:09 am

    Maybe this will help pave the way for Tom Corbett to indeed serve a second term, a richly deserved life term, in prison, for treason.

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