HARRISBURG -- South Fayette officials say the state review of their drilling ordinance shows "malicious intent" and should be suspended until Pennsylvania's top court has ruled on the pending Marcellus Shale appeal.
The township was notified by the state Public Utility Commission late last month that South Fayette resident William Sray asked the agency to review his town's drilling rules.
The PUC is tasked under the new Marcellus Shale law, known as Act 13, with determining whether local drilling ordinances fall within state parameters for what municipalities can and cannot regulate. Municipalities with drilling rules deemed unacceptable are ineligible for the impact fee dollars that drillers now must pay annually.
A portion of the law related to zoning was overturned in Commonwealth Court, but the agency has begun ordinance reviews under sections of the law that appear to remain in effect.
In a filing dated Friday, attorneys for South Fayette, which was part of the legal challenge to Act 13, responded to the agency's notification. They disputed the PUC's decision to begin reviewing ordinances and pointed to comments from agency officials before the July court ruling in which they said the pending litigation created too much uncertainty to judge ordinances.
"Although portions of Act 13 have now been declared unconstitutional and despite the increased uncertainty of the pending appeals in the Pennsylvania Supreme Court, the PUC has nevertheless inexplicably chosen to reverse its prior policy of restraint and has commenced its zoning ordinance reviews by reviewing the zoning ordinances of two of the municipal petitioners," the attorneys wrote.
They continued: "This punitive action of the PUC evidences malicious intent and is indicative of professional persecution."
The attorneys argued that the agency, which also is reviewing a drilling ordinance in Robinson, Washington County, is unable to be objective due to its "aggressive stance" against the municipalities in their lawsuit.
In addition to its 16-page response to the PUC, South Fayette and the other municipalities involved in the Act 13 lawsuit also are asking Commonwealth Court to find that the agency is violating an August court order and order it to cease and desist.
PUC spokeswoman Jennifer Kocher said the previous court ruling only threw out the law's zoning section and the agency believes it is required to move forward with reviews under remaining sections of the law.
A ruling on the South Fayette ordinance is expected to be issued by late October, she said.
Harrisburg Bureau Chief Laura Olson: email@example.com or 1-717-787-4254.