HARRISBURG – The Supreme Court of Pennsylvania has unanimously sent a case surrounding a long-standing dispute among the City of Lancaster, the boroughs of Carlisle and Columbia and the Pennsylvania Public Utility Commission over the placement of natural gas meters in historic districts, back to an intermediate appellate court for further proceedings.
On April 25, the full complement of the state Supreme Court ruled to return the municipalities’ case against the PUC to the Commonwealth Court of Pennsylvania. Justice P. Kevin Brobson authored the Court’s opinion in this matter.
The events at issue in the case began in 2018, when UGI Utilities decided to install gas meters on the exteriors of homes in the City of Lancaster’s historic district, and added they would install such meters outside homes whenever it was possible to do so.
Homeowners in the historic district protested the company’s move, feeling that the presence of the meters detracted from the antique nature and aesthetic appeal of their residences. The majority of homes in Lancaster and Columbia are found within historic districts, which were created pursuant to the Municipal Historic Districts Law.
The dispute ran into 2019, and led to Lancaster and the boroughs of Carlisle and Columbia requesting that the Commonwealth Court examine PUC guidelines on the placement of gas meters, feeling that the PUC deferred too much authority to gas companies to decide that point.
In response to the request, the PUC cited Section 59.18 of its own regulations, which “does not vest absolute discretion in natural gas distribution companies (NGDCs) with respect to the location of natural gas meters.”
“Section 59.18 clearly states that a NGDC must consider the location of a natural gas meter inside a building in a historic district. If the NGDC determines that it cannot accommodate a natural gas meter inside the building, the aggrieved party can ultimately have the PUC review this determination pursuant to Section 701 of the [Pennsylvania Public Utility Code] and Section 5.21 of…the PUC’s regulations,” per a PUC brief to the Commonwealth Court.
Section 701 of the Code provides that “the PUC, or any person, corporation, or municipal corporation having an interest in the subject matter, or any public utility concerned, may complain in writing, setting forth any act or thing done or omitted to be done by any public utility in violation, or claimed violation, of any law which the PUC has jurisdiction to administer, or of any regulation or order of the PUC” – and “any public utility, or other person, or corporation likewise may complain of any regulation or order of the PUC, which the complainant is or has been required by the PUC to observe or carry into effect.”
Section 5.21 of the PUC’s regulations explains that “a person complaining of an act done or omitted to be done by a person subject to the jurisdiction of the PUC, in violation, or claimed violation of a statute which the PUC has jurisdiction to administer, or of a regulation or order of the PUC, may file a formal complaint with the PUC.”
In 2019, the Commonwealth Court ruled in the municipalities’ favor, finding that the PUC’s regulations unlawfully gave authority to gas companies to determine where gas meters located in historic districts would be placed.
However, the PUC appealed the decision to the state Supreme Court, arguing the municipalities hadn’t proven “actual controversy” or factored in safety when considering where gas meters would be placed.
The PUC also provided that its own representatives can be the arbiters of where gas meters would be placed in historic neighborhoods, were any customers to contest the decision of their service provider.
In its ruling, the state Supreme Court found that the Pennsylvania Legislature never wrote a law investing the PUC with the power to decide the location of where gas meters are placed – leaving the companies to decide instead.
“Concerned with the safety of the citizens of the Commonwealth, and in recognition of the minimal guidance that former Section 59.18 of its regulations provided as to the location of gas meters, the PUC amended Section 59.18 to, establish that outdoor gas meter placement is the default location for gas meters in the Commonwealth ‘unless otherwise allowed or required’ by the regulation," Brobson wrote.
"The PUC provided an exception to the default location where a building is located in a historic district, in which case an inside meter location ‘shall be considered’ in conjunction with a number of attendant circumstances. There is no allegation in this case that the PUC lacked the administrative authority to amend Section 59.18. Thus, at bottom, the municipalities’ non-delegation argument masks their real complaint – i.e., the PUC did not go far enough in Section 59.18 to limit, or direct, NGDCs’ placement of gas meters in historic districts. That disagreement, however, does not amount to a non-delegation claim under the circumstances presented here. Accordingly, because this case presents a circumstance that falls outside the realm of the non-delegation doctrine, the municipalities’ claims must fail.
“Upon careful review, we conclude that the General Assembly never enacted a statute vesting the PUC with any legislative authority under Article II, Section 1 of the Pennsylvania Constitution relative to the location of gas meters in historic districts that would give rise to any constitutional concerns regarding delegation. Accordingly, we reverse the Commonwealth Court’s order granting the municipalities’ application and remand the matter to the Commonwealth Court for further proceedings consistent with this opinion.”
Supreme Court of Pennsylvania case 107 MAP 2022
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com