On January 2, 2014 the Pennsylvania Public Utility Commission and Department of Environmental Protection (“Applicants”) filed an Application for Reargument of Robinson Township,1 in the Pennsylvania Supreme Court, requesting reconsideration of the December 19, 2013 plurality opinion and remand to the Commonwealth Court for an evidentiary hearing and findings of fact. The Applicants argue that the plurality of the Court, in applying its newly coined Environmental Rights Amendment balancing test, adopted novel and unsupported findings of fact, contrary to established Supreme Court principle against taking on a fact finding role in its appellate jurisdiction. Robinson Township, et al., (“Townships”) answer that no disputed facts were necessary to the Court’s balancing test, and in the alternative, judicial estoppel precludes Applicants from requesting an evidentiary hearing because Applicants successfully argued in the Commonwealth Court that the Act’s constitutionality was purely a question of law. Applicants also request remand to have the Commonwealth Court determine whether the unconstitutional set back provisions are severable from the rest of Act 13....
HMS Legal Blog
On January 14, the US Court of Appeals for the D.C. Circuit invalidated certain rules adopted by the Federal Communications Commission’s (FCC) in its Open Internet Order (In re Preserving the Open Internet, 25 F.C.C.R. 17905 (2010)). The Court concluded that these rules imposed common carrier obligations on broadband internet providers, contrary to express limitations in the Communications Act, and were thus invalid. Verizon v. Federal Communications Commission, Dkt. No. 11-1355 (D.C. Cir. January 14, 2014) (“Verizon”)....
Back in June 2011, we reported here that Congress’ brand new creation known as the “Federal Insurance Office” (FIO) had found its first Director in former Illinois regulator Michael McRaith. We cautiously anticipated then the issuance of the FIO’s initial report to Congress, scheduled for January, 2012, regarding the effectiveness of the state-based system of insurance regulation, as well as recommendations for changes and improvements. Industry stakeholders speculated then about what the establishment of this new federal bureaucracy might signal and what role the Feds might be looking to assume in their industry in the wake of scares about financial instabilities surrounding major U.S. insurers. The decades-old debates about federalism in the regulation of insurance were sparked anew and we waited for word from Director McRaith and his Office. And we waited. A year passed and we waited some more. Another year passed and the Feds rolled out their health insurance marketplace and that went…well, they did roll it out! You may have heard....
A government body subject to the Sunshine Act’s requirement of public decision-making is free to engage in non-public information gathering sessions, including private meetings with opposing parties in ongoing litigation in which a quorum of the agency members participate, so long as the actual decision-making, or “deliberation” takes place at a public meeting, the Supreme Court has ruled. In Smith v. Township of Richmond 34 MAP 2013, __A.3d __ (December 16, 2013), the Pennsylvania Supreme Court “allowed appeal on a limited basis to examine whether the Sunshine Act’s definition of ‘deliberations’ is implicated where… an agency meets with various parties – including opposing parties in litigation – to obtain information designed to help the agency make a more informed decision with regard to settling the ongoing litigation.” In finding no violation and permitting the fact-finding sessions, the Court affirmed the decisions of the Commonwealth Court and the trial court....
Pennsylvania Governor Tom Corbett has issued an Emergency Proclamation temporarily waiving certain state and federal motor fuel carrier regulations for propane and heating oil transport carriers....
Pennsylvania Supreme Court Held Key Provisions of Act 13 Unconstitutional under the Environmental Rights Amendment (ERA)
The Pennsylvania Supreme Court held key provisions of Act 13 unconstitutional under the Environmental Rights Amendment (ERA) of the Pennsylvania Constitution in a plurality opinion on December 19, 2013. Act 13 was designed to streamline regulation of the oil and gas industry by setting statewide zoning standards and administrative review procedures, which posed significant financial ramifications for non-compliant municipalities. The Court specifically held that the provisions mandating municipal zoning standards, such as permitting industrial oil and gas operations as a use of right in every zoning district throughout the state, are unconstitutional. These provisions were overturned because the legislature has abrogated constitutionally proscribed municipal duties to protect the rights guaranteed by the ERA. The Court also held that provisions of the act imposing a waiver process for mandatory setback from waterways, administered by DEP, also violated the ERA....
On November 25, 2013, Governor Tom Corbett signed Act 89 (the “Act”) into law. The Act, predominantly funded by an increase in motor fuel taxes, will provide needed upgrades to Pennsylvania’s transportation infrastructure....
The PUC’s deadline of December 12, 2013, to receive comments from interested parties on the current state of competitiveness of the natural gas market in Pennsylvania is drawing near.
Pennsylvania Public Utility Commission Issues Proposed Rulemaking Order to Revise Evidentiary Criteria for Household Goods in Use Carrier Applicants
On September 12, 2013, The Pennsylvania Public Utility Commission (“Commission”) issued a Proposed Rulemaking Order by which it is recommending revisions to the evidentiary criteria applicable to household goods in use (moving companies) Applicants when they seek authorization to provide service in Pennsylvania. The revisions recommended by the Commission would ease entry barriers for new Applicants, thereby promoting and encouraging increased competition within Pennsylvania. It is the Commission’s expectation that increased competition will lead to better prices and enhanced service quality and reliability for Pennsylvania consumers.
The Public Utility Commission (“PUC”) recently issued a Tentative Order in the matter of: The Use of Fixed Price Labels for Products With a Pass-Through Clause, Docket No. M-2013-2362961 (Tentative Order entered May 23, 2013), in which it requested interested parties to comment on what it views as an emerging problem: certain Electric Generation Suppliers (“EGS”) offering products labeled as “fixed price” when the products clearly are “variable price” products. Comments were filed June 24 and a PUC decision is expected soon.
The Storage Tank and Spill Prevention Act (the “Act”) created the Underground Storage Tank Indemnification Fund (the “Fund”) to provide clean-up and third party liability coverage for owners and operators of underground storage tanks (USTs). The claimant must meet certain requirements to recover remediation costs from the Fund. Specifically, the claimant must be current on all required fees under the Act.
In what will likely prove to be a controversial decision, the Staff of the Pennsylvania Public Utility Commission denied the request of First Energy Solutions (FES0 to be the assignee of two default service supply contracts, currently held by BP, for two tranches of supply each with Metropolitan Edison Company and West Penn Power Company. FEs has appealed Staff's action to the Commission itself.
The Pennsylvania Supreme Court has adopted rule changes that will result in shorter appellate briefs based on a “word count” approach of the type used in the Federal Rules of Appellate Procedure. The current volume limits are 70 pages for principal briefs and 25 pages for reply briefs. Under the new rules, the volume limits are a “word count” of 14,000 words for principal briefs (approximately 56 pages assuming 250 words per page) and 7,000 words for reply briefs (approximately 28 pages assuming 250 words per page). A brief based on word count must be accompanied by certification of counsel that the brief complies with the limit. The rule permits continued use of a page count to determine volume, but at the reduced page count levels of 30 pages for principal briefs and 15 pages for reply briefs.
In an effort that is likely to fall short of the expectations of more than a few participants, the Pennsylvania Public Utility Commission (“Commission”) officially shared its vision of the next steps for encouraging more competitive electricity markets in the Commonwealth.
In a long anticipated Tentative Order, the Pennsylvania Public Utility Commission (“PUC”) finally revealed its vision for the “end state” of the retail electricity market in Pennsylvania. The problem; many observers believe that the “cure” will kill the patient.
Jersey and New York gasoline distributors continue to struggle to supply gas stations with diesel and gasoline product while federal and state legislatures both suspend and invoke regulations in order to assist and police gasoline distributors.
Pursuant to the Proclamation of Disaster Emergency issued by Governor Corbett on October 26, 2012, the Secretary of Transportation, Barry J. Schoch, has signed a waiver extending the hours drivers may drive in a single shift from 11 to 14 hours. This waiver applies to drivers carrying motor fuels, heating oil, or propane.
Pennsylvania Transfers Jurisdiction Over Passenger Transportation Service in Allegheny County From Port Authority to PUC
The Pennsylvania Legislature recently amended the Second Class County Port Authority Act, 55 P.S. §§551-563.5, to, among other things, transfer jurisdiction over certain passenger transportation services occurring in Allegheny County from the Port Authority of Allegheny County (“Port Authority”) to the Pennsylvania Public Utility Commission (“PUC”). Prior to the amendments, jurisdiction over certain types of passenger service in Allegheny County, such as scheduled route, paratransit and airport transfer, resided with the Port Authority.
The Pennsylvania Public Utility Commission (“PUC”) caused quite a stir with its August 16, 2012 Order that partially approved the jointly filed default service plans of the four First Energy electric utility affiliates serving in Pennsylvania.
 Joint Petition of Metropolitan Edison Company, Pennsylvania Electric Company, Pennsylvania Power Company and West Penn Power Company for Approval of their Default Service Programs, Docket Nos. P-2011-2273650 et al. (Order entered August 16, 2012)(“First Energy Order”) .
On August 21, 2012, the Court of Appeals for the District of Columbia struck down the EPA’s Cross State Air Pollution Rules, also known as the Transport Rules, that governed the emissions reduction responsibility of 28 upwind states – including Pennsylvania -- under the “good neighbor” provisions of the Clean Air Act (“CAA”). EME Homer City Generation L.P. v. EPA, No. 11-1302 (D.D.C. August 21, 2012)(Kavanaugh, J. on the opinion, joined by Judge Griffith). The “good neighbor” provisions of the CAA require that upwind states prevent sources within their borders from emitting pollution that “contributes significantly” to downwind states’ nonattainment of federal air quality standards. The EPA adopted the Transport Rules in August 2011 to define the “good neighbor” obligations for two emissions: sulfur dioxide (SO?) and nitrogen oxide (NO?).