Commonwealth Court Finds Environmental Rights Amendment Requires PUC Environmental Impact Review of Public Utility Facility Siting
On March 9, 2023, the Commonwealth Court issued a memorandum opinion reversing and remanding a Pennsylvania Public Utility Commission (PUC) decision that approved a natural gas company’s plan for siting facilities. The court held that the PUC failed to fulfill its duties under the Pennsylvania Constitution’s Environmental Rights Amendment (ERA) because the PUC did not conduct a review or analysis of the environmental impacts of the proposed facilities, including explosion impact radius, noise, or heater emissions. The decision opens the door for environmental activists and municipalities to oppose siting of utility buildings on environmental impact issues and places increased burdens on utilities and the PUC for utility facility siting.
In general, the PUC lacks authority over siting of public utility infrastructure except in limited circumstances, such as where, like here, the utility seeks exemption from local zoning laws pursuant to Section 619 of the Pennsylvania Municipalities Planning Code (MPC). MPC Section 619 allows utility exemption from zoning laws where the utility shows and the PUC finds that the siting of the building in question is reasonably necessary for the convenience or welfare of the public. Here, the court found the PUC must go beyond the public convenience and welfare standard when evaluating siting petitions because the PUC is obligated under the ERA to consider the environmental impacts of placing a building at a proposed location.
“[A] Section 619 proceeding is constitutionally inadequate unless the [PUC] completes an appropriately thorough environmental review of a building siting proposal and, in addition, factors the results into its ultimate determination regarding the reasonable necessity of the proposed siting.” Slip Op. at 13. The court found the PUC had side-stepped the issue because while the PUC said it would defer to other agencies with jurisdiction over environmental issues, the PUC failed to identify any outside agency determinations that pertained to explosion impact radius, noise, or heater emissions.
The court’s decision appears to require the PUC to conduct an environmental analysis of proposed utility building siting. The PUC has no statutory, regulatory, or guidance to assist utilities in determining what evidence must be presented to fulfill the burden of proof on this issue.