A Pennsylvania law that critics have long claimed favors the Marcellus Basin’s shale gas industry over homeowners and the general public has been declared unconstitutional by the US state’s Supreme Court. Underlying a large area of western Pennsylvania, the massive Marcellus Shale formation provides more than 36% of the shale gas produced in the US.

Since its passage by the Pennsylvania state legislature in 2012, Act 13 has been controversial, as it enables shale gas exploration companies to seize privately owned subsurface property through eminent domain and also prevents health professionals from obtaining information on drilling chemicals that could harm their patients.

The law also limits notification of spills and leaks to public water suppliers, excluding owners of private wells that supply drinking water for 25% of Pennsylvania residents, and additionally pre-empts municipal zoning of oil and gas development.

Immediately after its passage, Act 13 was challenged by seven municipalities along with the Delaware Riverkeeper Network and a private physician. In its latest ruling, the Supreme Court said the eminent domain provision “is unconstitutional on its face,” as it grants a corporation the power to take private property for a private purpose, in violation of the Fifth Amendment of the United States Constitution and sections of the Pennsylvania Constitution.

The decision complements the court’s narrower ruling at the end of 2013, which said the law violated the Environmental Rights Amendment of the Pennsylvania Constitution. The state Public Utility Commission is now prohibited from having oversight on local ordinances and from withholding certain payments from municipalities that limit shale gas drilling.

“A majority of our state legislators joined with the oil and gas industry in placing corporate desires and profits over the constitutional rights of Pennsylvania citizens,” said John Smith, the attorney who represented four Western Pennsylvania municipalities in the case. “The Pennsylvania Supreme Court correctly found that the constitution is not a document to be ignored.”

Jordan Yeager, lead counsel on the case, said the court “has made a clear declaration that the Pennsylvania legislature cannot enact special laws that benefit the fossil fuel industry and injure the rest of us.”

Energy attorney Michael Krancer, who was secretary of the Pennsylvania Department of Environmental Protection when the law was passed, called the court ruling “no big deal,” while the industry-sponsored publication Marcellus Drilling called the plaintiffs "seven selfish towns" and the court justices "four left-wing Democrat judges."

The Pennsylvania ruling coincided closely with the arrival of the first shipments of shale gas-derived ethane from the Marcellus field at the Grangemouth, Scotland complex of Swiss-based chemical giant Ineos.

At the landing, Chairman Jim Ratcliffe countered critics of shale gas exploration, asserting that fracking is safe because the US, as “the most highly regulated society in the world,” does not allow anything unsafe or environmentally unfriendly, and that shale gas is “no different.”   

Ineos has won several licenses from the UK government to begin carrying out shale gas exploration in wide areas of northern England and southern Scotland. As British law does not recognize the concept of eminent domain, allowing property rights to be overridden, the chemical producer has promised financial reward to homeowner who agreed to drilling on their land.