Environmentalists Score Big in Their War Against Fracking

Posted on October 25, 2016 by jphmpdirect

by Elizabeth Van Nostrand, JD, and Tina Batra Hershey, JD, MPH

Crossroads: Law and Public Health addresses topics related to the intersection of law and public health. This series highlights the perspectives of two attorneys turned academicians and explores legal and policy issues that impact public health.

The regulation of hydraulic fracturing or “fracking” is highly controversial throughout the United States. And the public health implications of industry practices remain unclear. Recently, however, the Pennsylvania Supreme Court, in its Robinson Township decision, struck down major portions of Act 13, the 4-year-old statute regulating the Commonwealth’s oil and gas industry, resulting in a victory for environmentalists and others concerned about fracking risks and public health.

All citizens expect clean, safe drinking water. Under Act 13, the Pennsylvania Department of Environmental Protection (PADEP) must notify public water facilities of chemical spills; however, there is no similar mandate for dangers near private water supplies. This is particularly problematic because more than 3,000,000 Pennsylvanians (or approximately 25% of Pennsylvania’s total population) derive their drinking water from non-municipal water supplies that are neither regulated nor licensed. Federal and state safe drinking water protections don’t apply to most private wells because these laws only shield water sources supplying water to 25 people or more.

During fracking, approximately 5,000,000 gallons of fracking fluids (comprising about 4,950,000 gallons of water, 475,000 gallons of sand or other proppant to keep fissures open, and 25,000 gallons of chemicals) are injected at extremely high pressure into the well. The US House Committee on Energy and Commerce determined that at least 29 different chemicals used in fracking are known or possible human carcinogens, or are hazardous air pollutants. Unfortunately, there are plenty of opportunities for inadvertent chemical spills. Trucks typically transport chemicals in concentrated form to the well pad where the fracking fluid is mixed; a chemical spill could occur due to a vehicular accident or an onsite mixing calamity. If the well casing is compromised, fracking fluid can be released into the water supply. Flow-back wastewater, sometimes stored in temporary open air impoundments lined with plastic, can leak. Contamination of the water supply does not differentiate between public and private sources. Requiring the notification of chemical spills for those people drinking water from municipal water sources but not for those with private wells violates Act 13’s promise to protect all citizens and is, in effect, a “special law” that favors one group over another. “Special laws” are unconstitutional unless they (1) promote a legitimate state interest; (2) are reasonably based on a difference between the dissimilarly treated groups; and (3) have a fair and substantial relationship to the General Assembly’s overall objectives. The court gave the General Assembly 180 days to come up with a legislative solution to this dichotomy.

Another provision struck down as an unconstitutional “special law” involves a health care provider’s ability to obtain and share confidential chemical information. Chemicals used in fracking are required to be listed on an open access website, but exceptions from public release are made for company-designated “trade secrets.” Health care providers can only receive “trade secret” information if they sign a written non-disclosure agreement and provide a statement that chemical information is necessary to diagnose and treat their patients. This medical gag order, vigorously opposed by the medical community, prohibits sharing of information with other individuals exposed to hazardous materials; with medical colleagues; and even with patients and their families. In addition, it impedes governmental public health’s ability to conduct epidemiologic studies to surveil potential effects of chemicals on occupational and community health. The Pennsylvania Supreme Court found that the health care provider gag order was a “special law” that favored the oil and gas industry over other businesses that use chemicals in their processes but are not afforded the “statutory shield” protection provided by Act 13.

While economic growth is tremendously important, particularly in rural and depressed areas where fracking often occurs, it cannot compromise the health of the community. The Environmental Rights Amendment incorporated in Pennsylvania’s Constitution clearly recognizes the role of the government as trustee of the state’s air and water. Fortunately, the Pennsylvania Supreme Court decided that this responsibility does not end with fracking laws.

Elizabeth Van Nostrand, JD, is an Assistant Professor in the Department of Health Policy and Management at Pitt Public Health, an Adjunct Professor in the School of Law, a recent Robert Wood Johnson Foundation Fellow, Director of Pitt Public Health’s JD/MPH program, and Principal Investigator/Director of the Mid-Atlantic Regional Training Center. [Full bio].