An attorney representing a Pennsylvania township that is challenging Act 13, the omnibus Marcellus Shale law, said the state Public Utility Commission (PUC) has no authority to review local drilling ordinances, and accused the agency of acting with “malicious intent” by doing so.
In a 16-page brief filed with the PUC on Friday, South Fayette Township Solicitor Jonathan Kamin accused the agency of reversing an earlier decision not to review local drilling ordinances in the wake of an appellate court ruling on July 26 that parts of Act 13 were unconstitutional (see Shale Daily, July 27).
“Although portions of Act 13 have now been declared unconstitutional, and despite the increased uncertainty of the pending appeals in the Pennsylvania Supreme Court, the PUC has nevertheless inexplicably chosen to reverse its prior policy of restraint and has commence[d] its zoning ordinance reviews by reviewing the ordinances of two of the municipal petitioners,” Kamin said, adding that the petitioners were South Fayette in Allegheny County and Robinson Township in Washington County.
“This punitive action of the PUC evidences malicious intent and is indicative of professional persecution. In addition, there is no way the PUC can be objective in its review of the South Fayette Township zoning ordinance as the PUC is an adverse party [that] has taken an aggressive stance on these matters and aligned itself with the oil and gas industry.”
Last week the PUC issued its first two nonbinding advisory opinions on local drilling ordinances, part of its new responsibilities to ensure that localities are in compliance with Act 13 (see Shale Daily, Sept. 10). It had not yet issued opinions for South Fayette or Robinson townships, both of which are plaintiffs in the legal challenge to Act 13 (see Shale Daily, April 2).
“We maintain that the Commonwealth Court ruling only affected one portion of the law, and that we are obligated under the law to implement the remainder of it,” PUC spokeswoman Jennifer Kocher told NGI’s Shale Daily on Monday.
Kamin, an attorney with the Pittsburgh-based firm Goldberg, Kamin & Garvin LLP, could not be reached for comment.
According to documents filed with the PUC, William Sray, a township resident, asked the agency to review South Fayette’s drilling ordinance on June 20 and Aug. 9. In a letter dated July 2 to Sray and then-Township Manager Michael Hoy, PUC Secretary Rosemary Chiavetta said the agency would not conduct such a review “due to the uncertainty surrounding the pending litigation.” But in another letter dated Aug. 20 Chiavetta told Sray and Township Manager Ryan Eggleston that such a review would take place.
The Pennsylvania Supreme Court is scheduled to hear oral arguments on the constitutionality of Act 13 on Oct. 17 in Pittsburgh (Robinson Township et al v. Commonwealth et al, No. 284-MD-2012) (see Shale Daily, Sept. 11).
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