Pennsylvania Fracking “Gag Rule” Draws Legal Challenge

A Pennsylvania doctor has filed suit alleging the state’s so-called fracking “gag rule” will force him to violate medical ethics.  Alfonso Rodriguez, a doctor in Luzerne County who often treats patients exposed to fluids used in hydraulic fracturing (fracking), claims the law’s confidentiality requirements would compromise his ability to discuss what chemicals such a patient had been exposed to.

The gag rule provision that is the subject of the lawsuit is part of Pennsylvania’s new natural gas drilling law known as Act 13.  Under the law, doctors in Pennsylvania may request and receive information on the chemical make up of fracking fluids if they are treating patients for ailments that may be related to exposure to those fluids, but they must first sign a confidentially agreement. As we reported earlier this year, the rules were not included in the version of the bill that was publically debated by the Pennsylvania House and Senate last February. Rather, it was added during negotiations between the two chambers, and many legislators who voted in favor of the law were not even aware of the addition of the physician gag order.

Rodriguez’s attorney told The Philadelphia Inquirer that his client, a kidney specialist, has treated people exposed to fracking fluids, including workers exposed to the fluids during well blowouts.  Because of the laws vagueness, Rodriquez has already had his lawyer draft a letter to his patients notifying them that “his ethical obligation to communicate with them may be curtailed.”  According to the Inquirer, Rodriguez is also president of the Gas Drilling Awareness Coalition, a group concerned about the fast rate of natural gas development in northeastern Pennsylvania.

Rodriguez’s lawsuit, which was filed in U.S. District Court in Scranton last week, seeks to have the medical provisions of Act 13 suspended until the state drafts regulations clarifying them. Pennsylvania’s Attorney General, Environmental Protection Secretary, and Public Utilities Commission are all named as defendants.

Rodriguez’s lawsuit is not the first legal challenge to Pennsylvania’s Act 13.  In April, some communities in southwestern and eastern Pennsylvania went to court to challenge a provision that prevented municipalities from exercising control over gas drilling within their jurisdictions.  Last month, the state’s Commonwealth Court ruled that those provisions were unconstitutional because they allow incompatible uses in zoning areas and fail to protect the interests of neighboring property owners.

In declaring that section of Act 13 null and void, the Court held that the provision “violates substantive due process because it allows incompatible uses in zoning districts and does not protect the interests of neighboring property owners from harm, alters the character of the neighborhood, and makes irrational classifications.”

Pennsylvania Governor Tom Corbett, whose election campaign received millions in donations from the natural gas industry, is a huge proponent of fracking in the state and has promised to appeal the decision to the Pennsylvania Supreme Court.

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