In Hess v. Pa. Pub. Util. Comm’n, No. 1370 C.D. 2013 (Pa. Commw. Ct. Dec. 22, 2014), the Pennsylvania Commonwealth Court en banc considered a petition for review of an order of the Public Utility Commission granting approvals for a transmission line crossing the Susquehanna River.  The majority opinion mostly addresses reliability and what constitutes public convenience and “necessity.”

Those following the evolution of law under the Environmental Rights Amendment to the Pennsylvania Constitution, Pa. Const. art. I, § 27, after Robinson Township v. Pa. Pub. Util. Comm’n, 83 A.3d 901 (Pa. 2013), may wish to look at the dissent by Judge Leavitt.  The PUC had concluded that it need not engage in a weighing of environmental impacts under the Environmental Rights Amendment because the line did not qualify as “high voltage” and therefore more rigorous regulations did not apply.  Judge Leavitt would have held that Robinson Township calls for a broadened duty of environmental review beyond the limits of the pre-Robinson test described in Payne v. Kassab, 312 A.2d 86 (Pa. Commw. Ct. 1973).  Only Judge McGinley joined her.

It appears that the broadest views of what Robinson Township means may not have majority support on the Commonwealth Court.  With Chief Justice Castille retiring from the Supreme Court, what Robinson Township does mean remains a little unsettled.  As always, stay tuned.

 

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Photo of David Mandelbaum David Mandelbaum

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and…

David G. Mandelbaum represents clients facing problems under environmental laws. He regularly represents clients in lawsuits and also has helped clients achieve satisfactory outcomes through regulatory negotiation or private transactions. A Fellow of the American College of Environmental Lawyers, David teaches Superfund, and Oil and Gas Law in rotation at the Temple University Beasley School of Law as well as an environmental litigation course at Suffolk (Boston) Law School.

Since United States v. Atlas Minerals, the first multi-generator Superfund contribution case to go to trial in 1993, Mr. Mandelbaum has been engaged in matters involving allocation of costs among responsible parties, especially under the Comprehensive Environmental Response, Compensation and Liability Act (CERCLA).  He has tried large cases and resolved others as lead counsel.  He has written, spoken, and taught extensively on the subject.  More recently he also has been engaged to assist lead counsel from this firm and others:

  • to develop cost allocation methodologies;
  • to craft expert testimony in support of a favored methodology (given a definition of “fairness,” why one methodology better tracks it than another);
  • to develop efficient case management approaches; and to assist private allocation as part of the neutral team.

Concentrations

  • Air, water and waste regulation
  • Superfund and contamination
  • Climate change
  • Oil and gas development
  • Water rights