A new year is upon us; and while that may facially seem like a good thing, the continued uncertainty has people anxious. I feel challenged to consider what issues, concerns, and hot topics are likely to rise the surface in the next twelve months. With the pandemic still at the top of the news queue most of the time, and with many people still working from home, if they are working at all, picking the possible hot-button issues is no easy task. The trick, if there is one, is to narrow down the range of probable outcomes – in this case, to things that were begun and not finished. What follows are my predictions for those industries regulated by public utility commissions – and the Pennsylvania Public Utility Commission (“PaPUC”) in particular.
HMS Legal Blog
The global Coronavirus pandemic poses novel challenges to the ability of individuals, professionals, organizations, and businesses to find a path forward during this crisis. At HMS we anticipated Governor Wolf’s call for employees to work remotely and our lawyers have been doing so since March 16 and will continue to do so under the Governor’s most recent pronouncement. In so doing we remain fully able to bring the wide-ranging resources of our firm to bear on your need for advice and representations. We have long-standing experience with government and administrative agencies and courts of law, and we can and will continue to put that experience to work for you.
After a long, complex path, Pennsylvania has finally arrived as an alternative ratemaking state. But who will be the first utility to avail itself of the options now available? Both the Wolf administration (“Administration”) and the Public Utility Commission (“Commission”) seem eager to have a test subject, I mean a willing participant, to propose an alternative ratemaking design. . But there are specific steps a utility must take in order to comply with, and obtain approval from, the Commission.
Looking to become a motor carrier in Pennsylvania? The process is complex because you will need to comply with the regulations of the Pennsylvania Public Utility Commission (“Commission”). Whether you want to transport passengers or property, your business will have to comply with regulations addressing such topics as insurance and vehicle maintenance to name a few.
The Legal Intelligencer Names Whitney Snyder of Hawke McKeon & Sniscak as a 2019 Lawyer on the Fast Track
Harrisburg, PA – April 12, 2019 – We are honored to announce that Whitney Snyder, partner at Hawke, McKeon & Sniscak LLP (HMS), has been named by The Legal Intelligencer as a Lawyer on the Fast Track. The list is part of The Legal Intelligencer’s annual Professional Excellence Awards and highlights “the great work and achievements across the full breadth of the Pennsylvania legal community.”
The mechanic’s lien (“lien”) is a statutory mechanism that enables contractors, and sometimes subcontractors (“claimants”), who are providing services or supplies to improve a property to place a lien on that property to secure payment for their work. This is a powerful tool common to construction contractors and subcontractors, but likely is a foreign concept to most other people. The basic purpose of the lien is to provide contractors with security for the services or materials they provide – the mechanic’s lien can only be used to secure services or materials actually provided, it is not intended to be a shortcut to sue for a breach of contract or any other civil matter. But, consequences of the lien can be severe, including a sale of the property to pay off the lien. But fear not, the mere filing of a lien does not permit a claimant to sell your property as the lien must be reduced to a judgment which occurs only once a lawsuit is filed and only if the court finds for the claimant.
The Pennsylvania Public Utility Commission opened a docket this year to examine whether it should encourage or require supplier consolidated billing (“SCB”). SCB is when competitive energy suppliers, rather than the utility, bill the customer for all the services associated with their energy supply, including the utility’s distribution charges – sort of the opposite of how it happens today. The reason I suggest that SCB is “sort of” the opposite of how things are done at present, is that when utilities bill and collect for suppliers now, they normally do so under a program called “purchase of receivables” or (“POR”) where the utility bills and collects from the customer and pays the supplier – regardless of whether the customer pays the utility. The supplier pays a fee for this benefit equal to the utility’s bad debt percentage, which is known as the “POR discount”. For example, if a utility can’t collect 4% of what it charges to customers as a group, suppliers only get 96 cents on the dollar for the product they sell, even if the utility collects a larger percentage of charges to the supplier’s customers, which is often the case. However, under the proposed SCB, the supplier would be required to remit 100% of charges back to the utility and manage the entire risk of uncollectible debts on its own.
Even experienced agents can make mistakes that jeopardize their license
Ben Adams knows what he’s doing as an independent insurance agent. He should. He’s been licensed for nearly 40 years, selling P & C and Life & Annuity products from the “Main St.” family-owned insurance agency his dad founded in a small town in eastern Pennsylvania. Ben and his brother have successfully operated the agency since dad retired years ago. They are well-respected in their community and in the industry. They have a nice, profitable book with good retention and respectable loss ratios. Naturally, Ben never had any licensing violations or trouble with regulators. And in his way of thinking, if a customer is unhappy, he will make it right. That’s the way their dad did business, so going above and beyond in customer service comes naturally to the Adams brothers. This time, though, that’s the thinking that ended up getting Ben in trouble.
Most US taxpayers are by now conscious of the passage of President Trump’s signature tax legislation which dramatically reduces the corporate tax rate from 35% to 21%. What many folks may not know is that the rates they pay to their local utility include recovery for the income tax expense of those utilities. This raises the question that some states, notably Kentucky and Oklahoma, have already begun to address: “How do regulators make sure that utility rates promptly reflect the substantial reduction in tax liability?” In Oklahoma, the Attorney General has called upon the Oklahoma Corporation Commission to address the tax savings issue which he estimates to total $100 million statewide. The Kentucky Public Service Commission already has ordered utilities to track their savings due to the tax change and to timely pass these savings on to customers. Montana and Michigan are taking similar actions.
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.
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.