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Zoning Bulletin November 10, 2016 1 Volume 10 1 Issue 21
<br /> transport,sell or store natural gas or manufactured gas in this Commonwealth"
<br /> 1 to use the subsurface real property of another landowner in order to store natu-
<br /> ral or manufactured gas.The PUC had advocated for, and the Commonwealth
<br /> J Court had agreed to, an interpretation of § 3241 as restricting the eminent
<br /> 11 domain taking power to only those corporations which qualified statutorily to
<br /> be public utilities (thus deeming it constitutional). The Supreme Court of
<br /> Pennsylvania, however, found that a plain reading of § 3241 allowed "any"
<br /> corporation"empowered to transport,sell,or store natural gas or manufactured
<br /> gas in this Commonwealth"to exercise the power of eminent domwin over the
<br /> private lands of another.The court found that,under Pennsylvania's Public Util-
<br /> ity Code,"those activities involving natural gas do not,alone,qualify a corpora-
<br /> tion to be considered a public utility."Rather, the court found that the Public
<br /> Utility Code specifies that only corporations"owning or operating in
<br /> [Pennsyl-vania] equipment or facilities for: [p]roducing, generating, transmitting,
<br /> distributing or furnishing natural . . .gas. . .for the production of light,heat,
<br /> or power to or for the public for compensation; . . .[t]ransporting or conveying
<br /> natural . . . gas . . . by pipeline or conduit,for the public for compensation
<br /> qualify for classification as a public utility." (66 Pa.C.S. § 102(t)(i); (v)
<br /> (emphasis added).)Further, the court found that the Pennsylvania legislature
<br /> "has specifically directed that those producers of natural gas which do not sell
<br /> gas `directly to the public for compensation'are excluded from classification as
<br /> public utilities." (66 Pa.C.S. § 102(2)(iii).) "Critically, then," held the court,
<br /> § 3241, "by its terms, does not restrict the type of corporation eligible to take
<br /> the subterranean lands of another property owner to only corporations that meet
<br /> these specific legislatively imposed conditions for them to qualify for classifica-
<br /> tion as public utilities." Consequently, the court concluded that, on its face,
<br /> §3241 conferred"a broad power on private corporations to take private prop-
<br /> erty of other landowners to store natural gas therein," and that the public was
<br /> not the "primary and paramount"beneficiary when private property was taken
<br /> in that manner. (The court said the projected and"speculative"benefit of such
<br /> takings perhaps was to "somehow advance the development of infrastructure"
<br /> in Pennsylvania,but concluded that such a benefit was merely an incidental one
<br /> j and not the primary purpose of the takings.) Upon concluding that § 3241
<br /> violated the United States Constitution and the Pennsylvania Constitution, the
<br /> court enjoined it from further application and enforcement.
<br /> j See also: Robinson Tp., Washington County v. Coin., 623 Pa. 564, 83 A.3d
<br /> 901, 181 O.G.R. 102(2013).
<br /> Case Note:
<br /> ` In its decision, the Supreme Coto t of Pennsylvania also held;'(1)that Act 13 does not
<br /> I
<br /> ,I violate the single subject rule of Article III, § 3 of the Pennsylvania Constitution with its
<br /> inclusion of§§3222.1(b)(10)and 3222.1(b)(11), "since those provisions are germane to r
<br /> the overall subject of Act 13, regulation of the oil and gas industry in Pennsylvania"; j
<br /> and(2)§§3222.1(b)(10)and 3222.1(b)(II)of Act 13 "wj2ich limit health professionals'
<br /> access to, and use of, information regarding chemicals used in the hydraulic fracturing
<br /> process, which has been designated confidential and proprietary information or trade
<br /> } secrets by a vendor,service provider,or tivell operator,violate the prohibitions in Article
<br /> 1
<br /> III,Section 32 of the Pennsylvania Constitution against the enactment of`special laws,'
<br /> 9 2016 Thomson Reuters it
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