Physician's challenge to Pennsylvania's “fracking gag order” dismissed

On February 14, 2012, the Pennsylvania Governor signed into law Act 13 of 2012 which regulates the disclosure of hydraulic fracturing chemical components.

Pa. Governor Tom Corbett

Section 3222.1(b)(10) of the Act requires that companies engaged in hydraulic fracturing disclose information regarding chemicals used in the process to medical providers contingent on the medical providers executing “a confidentiality agreement and provid[ing] a written statement of need for the information indicating all of the following:

1. the information is needed for the purpose of diagnosis or treatment of an individual; 
2. the individual being diagnosed or treated may have been exposed to a hazardous chemical; and 
3. knowledge of information will assist in the diagnosis or treatment of an individual.” 

Dr. Alfonso Rodriguez, a licensed medical physician “who has treated patients that have been exposed to toxic fluids and/or environmental contamination caused by oil and gas operations,” filed a lawsuit on July 27, 2012, complaining that the “medical gag” provisions of Pennsylvania’s Act 13 of 2012 improperly restricted his First Amendment freedom of speech rights.

He argued that the “practice of medicine requires a free and open exchange of questions, answers and information between” the doctor and the patient, medical community, researchers and insurance companies, among others. Plaintiff sought an injunction from requiring him to sign any confidentiality agreement.

On October 23, 2013, the Court granted Defendants’ motions to dismiss, ruling that Plaintiff lacked standing because his “alleged injury…is too conjectural to satisfy the injury in fact requirement of [U.S. Constitution] Article III standing.”

The court continued, “Plaintiff has not alleged that he has been in a position where he was required to agree to any sort of confidentiality agreement under the act. Therefore…he has not yet…been prevented from engaging in any sort of communication as a result of the act. Similarly, plaintiff has failed to indicate that he has been forced to waive any of his fundamental constitutional rights.”

The case has been dismissed.

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This post was written by Barclay Nicholson (barclay.nicholson@nortonrosefulbright.com or 713.651.3662) from Norton Rose Fulbright's Energy Practice Group.