Pennsylvania Court Deals Blow to Secrecy-Obsessed Fracking Industry

A gas drilling well pad sits on a hill behind a farm house in Faridale, Pa., Oct. 2, 2011. (Photo: Ruth Fremson / The New York Times)
A Pennsylvania judge in the heart of the Keystone State’s fracking belt has issued a forceful and precedent-setting decision holding that there is no corporate right to privacy under that state’s constitution, giving citizens and journalists a powerful tool to understand the health and environmental impacts of natural gas drilling in their communities.
“Whether a right of privacy for businesses exists within the prenumbral rights of Pennsylvania’s constitution is a matter of first impression,” wrote Washington County Court of Common Pleas Judge Debbie O’Dell Seneca late last month. “It does not.”
Judge O’Dell Seneca’s ruling comes in an ongoing case where several newspapers sued to unseal a confidential settlement where major fracking corporations paid $750,000 to a family that claimed the gas drilling had contaminated their water and harmed their health. The Court ordered that settlement unsealed, enabling the papers, environmentalists and community rights advocates to examine the health issues and causes.
“The ruling represents the first crack in the judicial armor that has been so meticulously welded together by major corporations,” said Thomas Linzey, executive director of the Community Environmental Legal Defense Fund, which has helped 150 communities in eight states adopt Community Bill of Rights to limit corporate powers. “It affirms what many communities already know, that change only occurs when people begin to openly question and challenge legal doctrines that have been treated as sacred by most lawyers and judges.”
The Court’s ruling is significant because the fracking companies have relied on secrecy agreements with landowners to hide the environmental and health impacts of gas drilling. Corporate lawyers even filed briefs in this case claiming that environmental and public health groups such as Earthjustice, Philadelphia Physicians for Social Responsibility and others were barred from submitting ‘friend of the court’ briefs, which they recanted in a hearing, the ruling noted, “because no such rule of exclusion exists.”
But where the ruling is likely to make the biggest waves is in the so-called corporate personhood debate. The Judge spent more than a third of her 32-page decision saying why corporations and business entities were not the same as people under Pennsylvania’s constitution, and why, for the purposes of doing business in the state, that federal court rulings that blur the rights of people and businesses do not apply.
“This court ruling is a significant development for the growing movement to restore democracy to the people,” said John Bonifaz, the co-founder and executive director of Free Speech For People, a national campaign launched on the day of the U.S. Supreme Court’s decision in Citizens United v. FEC. “The ruling is the newest example of dissent within the judiciary to the fabricated doctrine of corporate constitutional rights. It will be held up for years to come as a powerful defense of the promise of American self-government: of, by, and for the people.”
Judge O’Dell Seneca cited the text of the 1776 Pennsylvania constitution, the history of its various provisions, related recent case law from other states and policy considerations, and rejected the various claims by corporate lawyers that “made no attempt to parse those texts and construe them in light of the full document.” The Court wrote, “Nothing in that jurisprudence indicates that that right [of privacy] is available to business entities.”
“There are no men or woman defendants in the instant case; they are various business entities,” it wrote, saying business entities are created by the state and subject to laws, unlike people with natural rights. “In the absence of state law, business entities are nothing.” If businesses had natural rights like people, “the chattel would become the co-equal to its owners, the servant on par with its masters, the agent the peer of its principles, and the legal fabrication superior to the law that created and sustains it.”
The judge said the U.S. Constitution’s 14th Amendment “use of the word ‘person’ that makes its protections applicable to business entities” does not apply to Pennsylvania’s constitution. “The exact opposite is derived from plan language of Article X of the Constitution of the Commonwealth of Pennsylvania.”
“Not only did our framers know how to employ the names of business entities when and where they wanted them… they used those words to subjugate business entities to the constitution,” the Court held. “The framers permitted the Commonwealth to revoke, amend, and repeal ‘[a]ll charters of private corporations’ and any ‘powers, duties or liabilities’ of corpoeations… If the framers had intended this section [Article 1, Section 8] to shield corporations, limited-liability corporations, or partnerships, the Court presumes that they could and would have used those words. The plain meaning of ‘people’ is the living, breathing humans in this Commonwealth.”
The Court held that businesses do have legal rights protecting them from unreasonable searches and siezure of property, but that’s not the same as a right to personal privacy. “Our Commonwealth’s case law has not established a constitutional right of privacy to shield them from out laws.”
And looking at case law and rulings from other states, it held, “This Court found no case establishing a constitutional right of privacy for businesses, and it uncovered only one case that allowed a corporation to assert a state-based right to be free from unreasonable searches and siezures in a criminal matter.”
Summing up, the Court said “it is axiomatic that corporations, companies, and partnerships have ‘no spiritual nature,’ ‘feelings,’ ‘intellect,’ ‘beliefs,’ ‘thoughts,’ ‘emotions,’ or ‘sensations,’ because they do not exist in the manner that humankind exists… They cannot be ‘let alone’ by government, because businesses are like grapes, ripe upon the vine of the law, that the people of this Commonwealth raise, tendm prune and their pleasure and need.”
The Community Environmental Legal Defense Fund’s Linzey said that this ruling will affect other anti-fracking litigation in state court, but more importantly is a landmark in the ongoing community rights movement to elevate public values over private profits.
“It is that disobedience, of entire communities sitting at lunch counters demanding to be served, that is our only hope of salvation in a world increasingly commandeered by a small handful of corporate decisionmakers intent on remaking the world as their own,” he said. “A revolution that subordinates the powers and rights of corporations to the rights of people and nature now waits in the wings.”
“Judge O'Dell Seneca is on the right side of history,” said Bonifaz. “She has clearly articulated what millions of people across this country understand: that people, not corporations, shall govern in America. Judge O'Dell Seneca’s ruling provides further legal support for the national movement for a constitutional amendment to reclaim our democracy and to make clear that corporations are not people with constitutional rights.”
This article was published in partnership with GlobalPossibilities.org.

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