Act 13 case: More to come.

In its recent decision in Robinson Township v. Pennsylvania, a plurality of the Pennsylvania Supreme Court made some decisive proclamations in declaring certain portions of Act 13 unconstitutional. But the Court’s decision also left a number of significant issues undecided by “remanding” several issues to the Commonwealth Court – i.e., finding that the Commonwealth Court had decided those issues incorrectly and sending them back (with instructions) – for the Commonwealth Court to re-decide.

• One of the most significant issues remanded to the Commonwealth Court involves “severability.” When parts of a statute have been struck down, severability enables the remaining portions of the statute to remain and continue as law. In this case, the question is whether the portions of Act 13 not declared unconstitutional remain valid law in the absence of the unconstitutional sections. Pennsylvania law creates a presumption in favor of severability, but it allows judges to declare an entire statute unconstitutional if the remaining portions of the law “are so essentially and inseparably connected with, and so depend upon, the void provision or application, that it cannot be presumed the General Assembly would have enacted the remaining valid provisions without the void one” or “are incomplete and are incapable of being executed in accordance with the legislative intent.” 1 Pa.C.S. § 1925. The Supreme Court’s decision in Robinson Township determined that certain otherwise valid provisions of Act 13 – e.g., section 3215(b), which establishes gas well setbacks from streams and wetlands – were not severable from the unconstitutional provisions, and therefore had to be struck down with them. But, it directed the Commonwealth Court to consider more carefully the broader issue of the severability of the rest of Act 13. This could be a difficult issue for the Commonwealth Court, and it is worth following closely. If the Commonwealth Court ultimately decides that the remaining portions of Act 13 are not severable, the entire act would be struck down – even if no further provisions are deemed unconstitutional.

• The Pennsylvania Supreme Court also remanded the claims of Dr. Mehernosh Khan, who challenged the portion of Act 13 that requires physicians treating patients sickened by fracking fluids to sign a confidentiality agreement in order to obtain the chemical composition of those fluids. Contrary to the Commonwealth Court’s initial holding, the state Supreme Court determined that Dr. Khan was an appropriate person to raise the claim (i.e., had “standing”), and instructed the Commonwealth Court to evaluate Dr. Khan’s claim on the merits.

• Finally, the Supreme Court directed the Commonwealth Court to reconsider the plaintiffs’ claims – initially rejected by the Commonwealth Court – that Act 13 is unconstitutional as a “special law” and an unlawful “taking” of private property. Article III, Section 32 of the Pennsylvania Constitution prohibits “special laws” that apply too narrowly to a particular person or group of people and are not generally applicable, and both the Pennsylvania and United States Constitutions prohibit the government from unlawfully taking private property for private uses.

Considering the stakes of this litigation, it is possible (even likely) that the Commonwealth Court’s resolution of some of these issues will be appealed by one or both parties back to the Pennsylvania Supreme Court. Bottom line: this decision is already a landmark case, but stay tuned. There could be even more excitement to follow.

Michael Helbing is a staff attorney in PennFuture's Philadelphia office.