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PUC Divested Of Remaining Marcellus Zoning Duties

In Robinson Township v. Commonwealth, 83 A.3d 901(Pa. 2013) the Pennsylvania Supreme Court invalidated key provisions of Act 13, the statute that removed from local zoning control the power to regulate oil and gas operations through restrictions on the placement and operation of  oil and gas facilities.  The Court remanded to the Commonwealth Court to consider whether other provisions of Act 13, including provisions that give the PUC power to review local zoning ordinances and withhold impact fees, remain viable.

The Commonwealth Court on remand has now invalidated and enjoined enforcement of those other provisions that give the PUC jurisdiction to review the provisions of local ordinances to determine whether they comply with Act 13 and, if not, to withhold impact fees imposed on drillers and operatorsto alleviate the “impacts” of drilling on municipalities or to impose attorney fees and costs on the municipalities.  Robinson Township v. Commonwealth, __A.3d __ (Pa. Cmwlth. 2014)(July 17, 2014).

Specifically, the Commonwealth Court enjoined enforcement of sections 3302 and 3305 to 3309 of the statute.  Section 3302 provides that “[n]o local ordinance adopted pursuant to the MPC [Municipalities Planning Code] or the Flood Plain Management Act shall contain provisions which impose conditions, requirements or limitations on the same features of oil and gas operations regulated by Chapter 32 or that accomplish the same purposes as set forth in Chapter 32. The Commonwealth, by this section, preempts and supersedes the regulation of oil and gas operations as provided in this chapter.”  The Court held that the Supreme Court’s invalidation of the Act 13’s preemption of local regulation necessarily invalidates section 3302.

The Commonwealth Court invalidated sections 3305-3309 for similar reasons.  Section 3305 provides that municipalities may seek an advisory opinion from the PUC as to whether a proposed ordinance complies with Act 13, and provides that well operators and residents may seek similar opinions once a local ordinance is enacted.  Section 3306 provides that any person aggrieved “by the enactment or enforcement of a local ordinance that violates the MPC, this chapter or Chapter 32 (relating to development)” may bring an action in the Commonwealth Court “to invalidate the ordinance or enjoin its enforcement” whether or not initial review by the PUC was sought.  The Court determined that the effect of the Supreme Court’s decision “is that the statutory scheme cannot be implemented. Local zoning matters will now be determined by the procedures set forth under the MPC and challenges to local ordinances that carry out a municipality’s constitutional environmental obligations. Because challenges to those ordinances must be brought in common pleas court, it would further frustrate the purpose of the Act in having a uniform procedure.”  The Court invalidated  section 3307 (relating to the award of attorney fees and costs in actions brought under section 3306), section 3308 (relating to the withholding of impact fees for municipalities enacting or enforcing local ordinances that violate the MPC or Chapters 32 or 33), and  section3309(a) (relating to the applicability of Chapter 33) for similar reasons.

A copy of the Commonwealth Court’s decision is available here.

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