In a recent blog article, a writer on Pennsylvania health and development issues wrote about the Commonwealth Court decision finding that the PUC was subservient to local ordinances on oil and gas administration.
The Court held the clause in the statute providing decision making to the PUC was an improper exercise of state authority in power for a local ordinance.
One should read the opinion carefully because, as noted in the commentary of blogger Raichel, many other portions of the Act have been upheld.
One of the largest issues decided was whether—as Act 13 originally envisioned—the PUC would retain the ability to review local zoning ordinances for consistency with the Oil and Gas Act and other state law now that the “statewide zoning ordinance” provisions of Act 13 have been declared unconstitutional.
These PUC advisory opinions would have been no joke for municipalities. If the PUC determined that a local law “violated” other state law, that opinion could serve as a basis for expensive lawsuits against the municipality or denial of state “impact fee” funds that towns with fracking activity desperately need to repair the local damage caused by industrial fracking operations.
Thankfully, the Commonwealth Court tossed the provisions of Act 13 giving the PUC this authority as not “severable” from the unconstitutional statewide zoning provisions. In other words, because Act 13 envisioned the PUC’s role as mainly reviewing local laws for consistency with unconstitutional state law, that role could not be separated from the unconstitutional zoning provisions. Accordingly, like moldy food, this authority needed to be thrown out with those unconstitutional provisions (moldy food, of course, should be composted).
Not all of the news from the opinion is good, however. The court also upheld other challenged elements of Act 13. This includes the infamous medical “gag rule,” DEP’s liberty not to notify small private drinking water users of a contamination incident, and the ability of oil and gas companies recognized as “public utilities” to use the power of eminent domain to build gas storage facilities. However, it is important to note that even though the court did not find these provisions unconstitutional, it did not approve of their wisdom either. To the contrary, with respect to the contamination notification provisions, the court noted that DEP should take all actions to notify affected water users and that “drilling companies should make similar undertakings as good corporate citizens, not to mention that it is their actions that necessitate the warning.”