State relies on industry law firm for advice on oil and gas zoning

• Marie Cusick
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  Marie Cusick was the Harrisburg reporter for StateImpact Pennsylvania.

Over the past two years Pennsylvania has employed a Harrisburg law firm with ties to the oil and gas industry for advice on zoning rules directed at that very same industry.
The law firm of McNees, Wallace and Nurick is an associate member of the gas industry trade group, the Marcellus Shale Coalition. The firm’s attorneys routinely represent energy companies before the state Public Utility Commission (PUC).
In fact McNees is currently representing Sunoco Logistics in a high-profile case before the commission. The company is seeking permission from the PUC to be considered a “public utility corporation,” which would exempt its Mariner East pipeline from local zoning codes.
“This is pretty bizarre”
McNees has also spent the past two years working as outside legal counsel to the PUC– advising the PUC on its authority under the state’s two-year-old oil and gas law, known as Act 13. The firm was hired in 2012 and has received $29,593 for its work so far.
Chris Borick is political science professor at Muhlenberg College and directs the school’s Institute of Public Opinion.
“This is pretty bizarre,” he says of the firm’s arrangement with the PUC. “No what matter the legal boundaries say, from a public perception point, it just seems too cozy between the industry and the regulators.”
Act 13 gave the PUC the power to withhold natural gas impact fee money from local governments with unfavorable oil and gas zoning rules.
Parts of the law were struck down by the state Supreme Court late last year–including the most controversial portions restricting local governments of their zoning power.
Despite the decision, the court battle over Act 13 isn’t over yet. One of the remaining issues in the case is whether or not the PUC still has the authority to review local zoning rules.
Jordan Yeager is a attorney who represents local governments challenging Act 13.
“There’s a real concern the PUC isn’t putting the interests of the citizens first, they’re putting the interests of the industry first,” he says.
“This contract did not create any conflicts of interest”
In April 2012, McNees assembled a nine-member team of attorneys to advise the PUC on zoning matters.
In the firm’s official proposal to the commission, two of the attorneys are listed as active members of gas industry trade groups– the Marcellus Shale Coalition and the Pennsylvania Independent Oil and Gas Association.
PUC spokeswoman Jennifer Kocher says although the firm provided initial training to the commission on zoning issues, it did not give any specific counsel on reviewing zoning ordinances under Act 13.
“This contract did not create any conflicts of interest for the PUC as the McNees attorneys advising the PUC on Act 13 zoning matters were not the same attorneys who practice before the Commission on separate utility matters,” Kocher wrote in an email. “The divisions are siloed within the law firm.”
McNees also represented two state Republican leaders– House Speaker Sam Smith and Senate President Pro Tempore Joe Scarnati– in a motion they filed attempting to defend Act 13 and intervene in the court case. Their petition was subsequently denied.
In a May 2012 letter to the PUC, McNees attorney Charles Courtney wrote that the firm, “certifies that the work to be performed on behalf of the Commission does not represent a conflict of interest,” but he continued, “it is important to note, however, that McNees appears before the Commission on behalf of its clients on utility and energy related matters on a regular basis and will continue to do so.”
In an email to StateImpact Pennsylvania, McNees spokeswoman Vikki Grodner says the firm has not represented any clients before the PUC with respect to Act 13.
“We fully disclosed to the PUC that we had existing clients that were a part of the natural gas industry, as well as municipal clients.”
The firm’s contract with the state expires on Wednesday. According the PUC it will not be renewed, due to the state Supreme Court ruling on Act 13.
McNees formed its own political action committee over a decade ago and has given generously to candidates from both parties. Since 2009 its PAC has spent more than $100,000 annually.
 
As a note of disclosure, McNees, Wallace, and Nurick has provided legal counsel to witf, which is one of two public media stations that collaborate on StateImpact Pennsylvania, on local matters.
 

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