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July 29, 2013

PA PUC Injoined From Reviewing Zoning Ordinances

On July 25, 2013, the Pennsylvania Supreme Court ruled that the state’s Public Utility Commission (“PUC”) cannot evaluate the propriety of local zoning ordinances while the appeal regarding the constitutionality of Act 13’s dictate preventing local municipalities from banning drilling is pending.  In addition to prohibiting local bans of drilling, Act 13 gave the PUC a role in reviewing local zoning ordinances and evaluating whether their legitimacy. Act 13’s constitutionality has been at the forefront for over a year now.  In July 2012, a lower court held that the provision preventing local municipalities from banning drilling violated due process.  An appeal ensued, with a final decision still pending and speculation rampant regarding the potential for a split decision which would equate to an affirmance.  Importantly, an injunction was continued preventing the state from preempting local zoning ordinances under Act 13 during the pendency of the appeal. While the injunction was in place, the PUC sought to proceed with challenges that had been filed against local zoning ordinances.  A lower court ordered the PUC to cease its reviews, finding that the PUC was in violation of the prior injunction.  The PUC appealed.  In a one page decision, the Supreme Court rejected the PUC’s appeal.  The PUC, therefore, may not consider any challenges to local zoning ordinances until such time as Act 13 is declared constitutional. In the meantime, the fate of Act 13 and its preemption of zoning ordinances remain in limbo.  Industry, local municipalities and drilling opponents alike are all anxiously awaiting the court’s decision on whether Act 13 can constitutionally preempt local bans on drilling.  


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