Commonwealth Court Confirms Affirmative Public Benefits Standard Still Has Teeth in Fair Market Value Acquisitions (Reversing PA PUC Approval of Aqua Acquisition of East Whiteland Township)
In Cicero v. Pennsylvania Public Utility Commission, ___ A.3d ___, (Pa. Cmwlth., No. 910 C.D. 2022, filed July 31, 2023) (“Cicero”), the court reversed the Pennsylvania Public Utility Commission’s (PUC) approval of Aqua Pennsylvania Wastewater Inc.’s acquisition of East Whiteland Township’s wastewater system assets. The court found Aqua had not proven that the acquisition would provide affirmative public benefits and confirmed that proving net benefits outweigh detriments of a transaction remains the standard for approving fair market value (FMV) acquisitions of municipal assets. Cicero, slip op. at 21 (“[I]n every Section 1329 case, it must be shown that the affirmative public benefits that arise from and are specific to a transaction outweigh the harms of the transaction, such that approval of the transaction will ‘affirmatively promote the service, accommodation, convenience, or safety of the public in some substantial way.’”).