Pennsylvania’s Public Utility Commission has appealed a recent Commonwealth Court decision, which stripped the agency of its authority to review local zoning ordinances regarding Marcellus Shale natural gas drilling. The state’s drilling law, enacted in 2012, gave the PUC authority to decide whether or not a municipality’s zoning ordinances complied with the state constitution and the new rules regarding natural gas drilling.
Act 13, the comprehensive legislation that amended the state’s oil and gas law, had implemented statewide zoning rules that the municipalities had to follow. It also allowed those who disagreed with the ordinances to bypass local zoning hearing boards, and appeal directly to the PUC or the Commonwealth Court. Several municipalities sued the state over this controversial law, and the case eventually made its way up to the Pennsylvania Supreme Court. The high court ruled in December that these restrictions on local zoning for natural gas development were unconstitutional.
But the Supreme Court sent some decisions in the case back down to the Commonwealth Court to decide. Among these included whether or not the Public Utility Commission’s authority superseded local zoning boards when it came to challenging a municipality’s zoning decision.
Last month, the Commonwealth Court ruled that given the Supreme Court’s ruling, it made no sense to have challenges to local zoning ordinances bypass the current process, and go directly to either the PUC or the Commonwealth Court. The July decision effectively removed the PUC from the new role created for the agency by Act 13.
But the law had also given the PUC and the Commonwealth Court power to withhold a municipality’s share of the Marcellus Shale impact fee if a local ordinance was found to be in violation of the law.
Part of the appeal seems focused on this issue. A spokesperson for the PUC says the agency continues to administer the law regarding impact fees.
“We are questioning the Commonwealth Courts order that prevents us from doing any sort of review of ordinances,” wrote PUC spokeswoman Denise McCracken in an email. The PUC also says it has authority over other aspects of Act 13 that the Supreme Court did not rule unconstitutional and the Municipalities Planning Code.
Jordan Yeager, who represents the local municipalities in the case, says he’s not surprised by the Commonwealth’s appeal.
“This is an effort by the General Assembly and the Corbett Administration to carve out special rules for the gas industry that no other industry has,” said Yeager. “The PUC doesn’t have a role in reviewing zoning ordinances in any other context. This is just special treatment for the gas industry.”
Yeager says the Public Utility Commission has played no historical role in the state’s local zoning. Yeager says he is considering a cross-appeal of other aspects of the Commonwealth Court’s July ruling.