Act 13 Update: PA Public Utility Commission Must "Cease and Desist," Pay Towns Money They're Owed


Topher Donahue, courtesy of Lighthouse Solar (here)  

Last Friday, the Commonwealth Court ordered the Pennsylvania Public Utility Commission (PUC) to “cease and desist” reviewing local zoning ordinances for conformity with the portions of Act 13 that it declared unconstitutional just months earlier.  The move should force the agency to release the nearly one million dollars in funds it was withholding from four Pennsylvania towns—Cecil, Mt. Pleasant, Robinson, and South Fayette—all of them plaintiffs in the Act 13 litigation.

To understand the importance of this ruling, it’s helpful to see a timeline of the Act 13 saga to date:

  • February 2012 – The Pennsylvania Legislature passes a set of comprehensive amendments to the state Oil and Gas Act, known as Act 13.  Importantly, Section 3304 of the Act contained provisions which essentially destroy all local zoning authority to prevent a frack well from being located next to a school, home, or hospital.  Section 3305 grants the PUC authority to review local ordinances that attempt to limit the location of fracking activities to determine if they violate Section 3304.  Where the PUC finds a local ordinance is in violation of 3304, Act 14 empowers them to withhold state impact funds collected under other portions of the Act.
  • March 2012 – Seven towns, along with the Delaware River Keeper Network, and a local physician fight back by challenging the zoning provisions and other provisions of the act in the Commonwealth Court.
  • April 2012 – The Commonwealth Court prevents Section 3304 from taking effect until after it renders a decision.
  • July 2012 – The Pennsylvania Commonwealth Court declares Section 3304 unconstitutional. (For a breakdown of the opinion, see here.)  The Court also issued an order preventing the state from implementing “the remaining provisions of [Act 13] that enforce” Section 3304.
  • August-October 2012 – Pennsylvania appeals the Commonwealth Court decision to the state Supreme Court, which hears oral argument on October 17. (To see the amicus brief NRDC filed in support of Pennsylvania municipalities in this case, click here.)  Meanwhile, the PUC withholds nearly one million dollars in state impact fee money from Cecil, Mt. Pleasant, Robinson, and South Fayette using the power granted to it under Section 3305 and other portions of the Act.
  • October 26, 2012 – The Commonwealth Court clarifies that the PUC does not have the authority to review ordinances under Section 3305, because that is a section that “enforces” Section 3304.  Accordingly, the PUC now has no legal basis for withholding the $986,000 it owes to the four towns.
  • Winter 2012?? – The PA Supreme Court will issue its ruling which ultimately decides the issue.

With all this in mind, there are two points worth stressing.  The first is that these four towns clearly deserve the money they are owed.  The purpose of the Pennsylvania “impact fee” is to compensate towns from the inevitable damage associated with fracking—like damage to local roads, pollution from well sites, and other damage associated with increased use of local infrastructure.  Cecil, Mt. Pleasant, Robinson, and South Fayette all have fracking within their boundaries, and are all experiencing the impact of fracking.  The state should not withhold valuable funds to address unavoidable damages from fracking before these towns have had their day in court—and it certainly shouldn’t do so if the motive is retaliation.

Secondly, it’s hard to overstate the importance of the Pennsylvania Supreme Court’s decision.  In effect, the decision will determine whether towns retain the right to exclude gas drilling from the places where they live, work, and send their children to school, or whether those decisions will be made by the drilling companies that hold mineral leases.  You may think that drilling companies might decide to avoid these sensitive areas, but that hasn’t stopped drillers in western states from drilling in urban areas like L.A. County and Ft. Worth, Texas, or next door to elementary schools (as evidenced in the photo below from Erie, CO).

In short, last week’s ruling by the Commonwealth Court is one in a series of victories for Pennsylvania municipalities, and reason to celebrate.  The real celebration, however, will come if and when the state Supreme Court upholds the decision of the Commonwealth Court, and declares Act 13’s scheme for forcing Pennsylvania towns to accept industrial fracking in virtually every neighborhood as simply not constitutional.

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