The Pennsylvania Public Utility Commission (PUC) is warning Pittsburgh officials that several portions of the city’s drilling ordinance are incompatible with Act 13, the state’s omnibus Marcellus Shale law.
In a letter Monday to City Solicitor Daniel Regan, the PUC identified four sections that needed to be amended, chief among them the city’s outright ban on commercially extracting natural gas within the city limits (see Shale Daily, Nov. 17, 2010).
“This provision of the ordinance, to any extent it attempts to enact its own environmental regulations, likely violates [Section] 3303 of the Act,” the PUC said. “Section 3303 provides that the Commonwealth ‘preempts and supersedes the local regulation of oil and gas operations regulated by [other state] environmental acts.'” Pittsburgh’s ordinance also is unlawful on the grounds that it attempts to regulate oil and gas operations, undermines the authority of the Pennsylvania Department of Environmental Protection (DEP) to issue permits and it establishes a severability clause, the PUC noted.
“The city cannot assume and override DEP’s permitting role [and] also cannot assume the power to retroactively deny all previously issued DEP permits,” the PUC said, later adding that a severability clause “attempt[s] to preempt both state and federal law, [is] at high risk of being invalidated.”
The PUC began issuing nonbinding advisory opinions on local drilling ordinances last week as part of its new responsibility to ensure that city ordinances are compatible with Act 13 (see Shale Daily, Sept. 10). An attorney for South Fayette Township in Allegheny County has already taken issue with the reviews (see Shale Daily, Sept. 12).
Pittsburgh City Council President Darlene Harris told NGI’s Shale Daily that she doesn’t intend to have the board revisit or reword the ordinance, citing the PUC’s position as being nonbinding and advisory in nature. “The words they used in their letter — ‘it appears’ and ‘it’s likely’ — mean that this is really nonbinding,” Harris said Wednesday. “And I know a couple of municipalities have had some problems too and had written back to them. They felt [the PUC] is taking sides. Their letter doesn’t mean much to me at all. We have a ban. As far as I’m concerned, we have a legal ban.”
On July 26 the Pennsylvania Commonwealth Court ruled 4-3 that Act 13’s zoning restrictions were unconstitutional on the grounds that they violated municipalities’ right to substantive due process. An appeal before the state Supreme Court is scheduled to be heard in October (see Shale Daily, Sept. 11; July 27).
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