Commonwealth Court to PUC: 'Cease and Desist'—Release the Impact Fee Money

The state Commonwealth Court today ordered that the state Public Utility Commission had no authority to review local gas drilling ordinances and subsequently withhold Marcellus Shale drilling impact fee payments in four townships challenging the state’s drilling law, announced state Rep. Jesse White.

When a $204 million statewide disbursement of Marcellus shale drilling impact fees was  announced Oct. 15, documents released by the PUC that day noted that Cecil, Mt. Pleasant, Robinson and South Fayette townships were designated as communities whose money was being “withheld pending resolution of the requests for review of existing ordinances."

White said the PUC's move, calling it a "violation of state law and political extortion," and the affected townships petitioned Commonwealth Court to rule on the matter.

The court agreed with them and today ordered the PUC to "cease and desist from acting upon requests pursuant to 58 Pa. C.S. 3305 to review municipal ordinances for compliance with the Pennsylvania Municipalities Planning Code, and Chapters 32 and 33 of Act 13” because of the Court’s July 26 order that struck down the local zoning provisions in the law.

“This is another win in what’s becoming a long string of victories for the side of local communities as related to Act 13,” White said. “Instead of fighting and attacking local governments at every turn, supposed industry leaders like Range Resources and the Corbett administration should attempt to work with us. Or, at the very least, they should realize that our local towns won’t back down and won’t tolerate the intimidation designed to divide and conquer our communities.”

The impact fees, as designed, are to be used for road and infrastructure improvements, police and fire protection and other measures local governments see fit to mitigate the impact of drilling in their communities. Cecil Township is scheduled to receive $246,098; Mt. Pleasant to receive $500,000; Robinson to receive $225,737.93; South Fayette to receive $2,731.39.

According to White, those four townships are "locked in a legal battle against the state over blanket zoning provisions in Act 13 that the townships, and Commonwealth Court, believe override the constitutional right to use local zoning ordinances to regulate natural gas drilling."

"The PUC's move was nothing more a nod to Governor (Tom) Corbett and the gas industry's attempt to divide and conquer. Fortunately, and thanks to the rule of law, it didn't work,” White said. "If the gas industry really wants to work together and formulate a reasonable way to develop Marcellus Shale, the people driving the policy and public relations need to realize that their default solution of attacking anyone who doesn't agree with them is failing miserably. We're tired of the games, the tactics, the double-talk, the lies and the attacks. It has to end if we want this industry to succeed long-term in Pennsylvania."

The state Supreme Court last Wednesday heard oral arguments of the Act 13 challenge. A final ruling is expected in the coming months.

Reached on the Commonwealth Court ruling Friday afternoon Cecil Solicitor John Smith, who spearheaded the Act 13 challenge and represents the four communities whose ordinances were under review and whose impact money was withheld issued the following statement:

"The municipalities we represent correctly interpreted the law as to the PUC's role in ordinance reviews and despite the clear statutory provisions, the PUC sought to go forward anyway to deny close to $1 million of impact monies to these select ACT 13 plaintiffs. As the Commonwealth Court agreed completely with our position, we fully expect and demand that the PUC immediately release the impact fees to these four communities."

Smith and Jon Kamin argued before the Commonwealth Court on Wednesday that the PUC didn't have the authority to review the oridinaces or withhold the impact money.

He added: "The judge found it very interesting that the only challenged communities were the Act 13 plaintiffs. The Commonwealth Court ordered the PUC to 'cease and disist' this activity.

Jennifer Kocher, press secretary for the PUC, said Friday the order is under review.

Editor's Note: To read the entire order, click on the attached PDF.