On October 18, 2017, Kevin McKeon, partner at Hawke McKeon & Sniscak, LLP and co-founder of Pennsylvania Appellate Advocate, joined the Pennsylvania Bar Institute for its CLE program, “Next Steps for Medical Marijuana in PA: Evolving Issues in a Growing Industry”. Mr. McKeon discussed the status of Pennsylvania’s medical marijuana program and related appeals pending before the Pennsylvania Department of Health, Office of Open Records, and Commonwealth Court.
HMS Legal Blog
There are three bills before the Pennsylvania General Assembly that could impact basic services that many Pennsylvanians take for granted. All three involve jurisdiction over pipes that run underground in the Commonwealth. The first two bills before the Pennsylvania General Assembly concern whether the Pennsylvania Public Utility Commission (“PUC”) or the municipalities/authorities will ultimately get to set rates and reasonable service standards for water and sewer service provided by municipalities. The third bill before the General Assembly came into the spotlight on October 10, 2017 when Rep. Barrar filed a resolution, strongly urging the PUC to deny Laurel Pipeline’s Application to reverse the flow of its Philadelphia-to-Pittsburgh pipeline from the current westerly flow to easterly.
Thomas Sniscak of Hawke, McKeon & Sniscak LLP Speaks before a Packed Audience about Marcellus Shale at the Keystone Energy Forum
FOR IMMEDIATE RELEASE:
January 12, 2017
Thomas J. Sniscak participated as a speaker at the Keystone Energy Forum on January 12, 2017. He spoke on the many critical issues facing the Marcellus shale industry from both the federal and state levels. In his presentation Attorney Sniscak addressed the eminent domain and public right-of-way issues related to the siting of pipelines within the Marcellus Shale areas of Pennsylvania.
Today the Department of the Interior (Department), announced that it has finalized regulations that it has been working on since 2009, which aim to “protect streams, fish, wildlife, and related environmental values from the adverse impacts of surface coal mining operations and provide mine operators with a regulatory framework to avoid water pollution and the long-term costs associated with water treatment” by overhauling 30-year-old regulations. Highlights include:
Commonwealth Court Denies PA PUC Authority to Rule on the Meaning of “Customer-Generator” under AEPS
In Sunrise Energy v. FirstEnergy Corp. and West Penn Power Company, the Pennsylvania Commonwealth Court affirmed the lower court’s ruling, in a 5-2 decision, that the Pennsylvania Public Utility Commission does not have primary, let alone exclusive, authority to adjudicate claims arising under the Alternative Energy Portfolio Standards Act (“AEPS”) because the General Assembly failed to delegate such authority to the Commission.
On September 28, 2016, the Pennsylvania Supreme Court (Court) ruled on a Commonwealth Court remand decision of the Robinson Township 2013 Court decision, where the Court held key provisions of Act 13 (the statute implementing major changes in Pennsylvania’s oil and gas laws and the ability of local government to regulate this industry) were unconstitutional (HMS Blog). In the 2016 Robinson Township decision, the Court: (1) upheld the Commonwealth Court’s holding that provisions related to Public Utility Commission (PUC) review of local ordinances are unseverable from unconstitutional provisions and thus unenforceable, and (2) held four additional provisions of Act 13, including the grant of eminent domain, unconstitutional.
On August 11, 2016, The PUC acting pursuant to Act 85 of 2016, which requires the PUC to promulgate new regulations in response to changes in the industry, requested public comment on ride sharing companies such as Uber and Lyft. Uber and Lyft have spurred and created controversy in both the Public Utility Commission (PUC) and Commonwealth Courts. The PUC requested comments include “specific suggestions for any proposal, including suggested regulatory language, with appropriate citations to current regulations that address the particular comment. Additionally, comments must provide the underlying rationale to support any suggested temporary regulations.” Comments are due 30 days from publication in the Pennsylvania Bulletin, which is published each Saturday. The rulemaking is docketed at L-2016-2556432.
On August 1, 2016, The Pennsylvania Department of Environmental Protection (DEP) released its 2015 Oil and Gas Annual Report (Report). In additional to natural gas production details, the Report provides information on natural gas data trends in Pennsylvania and details on DEP inspections. 2015 was a difficult year for the natural gas industry as it faced record inventory levels, declining prices, and decreases in newly drilled wells. DEP confirms Pennsylvania was not immune to the national downturn in natural gas drilling with only 1,070 newly drilled wells in 2015 – more than a 50% decrease from the 2,163 new wells drilled in 2014.
On June 30, 2016, at its most recent public meeting, the Pennsylvania Public Utility Commission (“Commission”) set a precedent important to Pennsylvania Uber (operating in Pennsylvania under its subsidiary Raiser-PA) and Lyft users alike by granting Yellow Cab Company of Pittsburgh, Inc. (“Yellow Cab”), a temporary extension of one year of operating authority to provide Transportation Network Service (“TNC”) in Pennsylvania. Although Yellow Cab may no longer be a household name like Uber and Lyft, the service that it provides is identical. In fact, Yellow Cab was the first Transportation Network Service (“TNC”) or app-based transportation provider that was granted temporary authority to operate in Pennsylvania. But under the Commission’s regulations, TNC authority is considered “experimental” and therefore is temporary and only valid for two years. Yellow Cab was granted authority to operate beginning in July 2014 and without the Commission’s June 30th Order, it would have been required to cease operating on July 1, 2016.
When Pennsylvania’s Independent Regulatory Review Commission (“IRRC”) voted unanimously at its June 30, 2016 meeting to disapprove for a second time the Pennsylvania Public Utility Commission’s (“PUC”) recent efforts to modify its regulations implementing the Alternative Energy Portfolio Standards(“AEPS”) Act, it was aware that its action would at most place a speed bump in the PUC’s path, but it disapproved the regulations anyway.
On June 29, 2016, President Obama, Prime Minister Trudeau, and President Nieto announced the North American Climate, Clean Energy, and Environment Partnership at the North American Leaders Summit. According to President Obama, the “ambitious and enduring” Partnership will see the United States, Canada, and Mexico “work toward the common goal of a North America that is competitive, that encourages clean growth, and that protects our shared environment.”
Yesterday, President Obama signed into law the “Protecting our Infrastructure of Pipelines and Enhancing Safety” (PIPES) Act. This bi-partisan bill was the culmination of efforts by both the Energy and Commerce Committee and the Transportation and Infrastructure Committee. This Act is intended to increase the efficiency and transparency of the Pipeline and Hazardous Materials Safety Administration (PHMSA) while enlarging safety inspections and audits of the natural gas pipeline industry.
On June 2, 2016 the Independent Regulatory Review Commission (“IRRC”) appropriately voted 5-0 to disapprove the Pennsylvania Public Utility Commission’s (“PUC”) attempt to modify its regulations implementing the Alternative Energy Portfolio Standards (“AEPS”) Act, 73 P.S. §§1648.1, et seq. The IRRC’s rejection was based primarily on its view that the PUC’s proposed regulations would exceed its statutory authority by limiting net-metering of electricity to entities with alternative energy systems sized to generate no more than 200% of their annual consumption. The IRRC went on to state that if the PUC decides to proceed with the rulemaking by deleting this limit, it “should ensure that other provisions of the regulation do not limit a customer-generator’s ability to net-meter excess generation it produces.” The IRRC also found that the PUC had failed to show any need for the modifications and suggested that because the PUC’s proposal appeared to be a change in policy of such a substantial nature consultation with the General Assembly was warranted.
Tuesday night, the U.S. Senate passed the Protecting our Infrastructure of Pipelines and Enhancing Safety Act (PIPES Act). This bill is now headed to President Obama to be signed into law. In addition to reauthorizing the U.S. Department of Transportation’s Pipeline and Hazardous Materials Safety Administration (PHMSA) through FY2019, this soon-to-be law enacts substantive changes in the pipeline industry’s regulatory landscape.
Uber Week for Uber in PA - Commonwealth Court Affirms PUC’s Authorization of Raiser’s Service (an Uber Subsidiary) and PUC Decreases Recommended $49 Mil Civil Penalty to $11 Mil
In an April 19, 2016 Opinion, the Pennsylvania Commonwealth Court affirmed the Public Utility Commission’s (PUC) grant of a certificate of public convenience (CPC) for experimental authority to operate as a common carrier to Raiser-PA, LLC (Raiser) in Pennsylvania, excluding Philadelphia. Raiser is a subsidiary of Uber Technologies, Inc. (Uber), which licenses the technology to Raiser that allows users to request a ride via smartphone app.
On March 17, 2016 Pipeline and Hazardous Materials Safety Administration (PHMSA) released a 549 page Notice of Proposed Rulemaking (NPRM) that significantly changes regulations for transmission lines and imposes regulations on previously unregulated gathering lines carrying, inter alia, natural gas and petroleum products.
Public Utility Commission (PUC) Commissioners gave Sunoco Pipeline a fighting chance at exemption from local zoning for outbuildings housing utility structures on the Mariner East Pipeline, finding prima facie evidence that Sunoco is a public utility and overruling the ALJs’ July 23, 2014 Initial Decision granting preliminary objections finding to the contrary.
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”).
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.