On May 12, 2020, a three-judge panel of the Commonwealth Court of Pennsylvania held that certain net metering regulations of the Pennsylvania Public Utility Commission (PUC) are unenforceable. The regulations
Continue Reading Commonwealth Court’s Invalidation of Pennsylvania PUC Defined Terms – Potential Net Metering Implications

In response to the widespread impacts of Hurricane Irma in Florida (all coastlines and virtually every community), Speaker Corcoran of the Florida House of Representatives has created a new Committee
Continue Reading Lessons of Hurricane Irma — State of Florida Focus on Hurricane Preparedness and Infrastructure

A town cannot compel a utility company to post a warning notice that its utility poles contain a wood preservative.  That is the effect of U.S. District Judge Spatt’s February 4th decision in PSEG Long Island LLC v. Town of North Hempstead, 15-cv-0222, slip op. (E.D.N.Y Feb. 4, 2016).

On September 9, 2014, the Town of North Hempstead (“Town”) enacted an ordinance that required PSEG Long Island (“PSEG-LI”) to post a “warning” sign on every fourth utility pole, indicating that: the utility pole contained a hazardous chemical; prolonged exposure should be avoided; and exposed areas should be washed.  PSEG-LI challenged the ordinance on multiple grounds including that it violated the First Amendment.  Greenberg Traurig attorneys William A. Hurst, Robert M. Rosenthal and Steven C. Russo represented PSEG-LI.

The majority of utility poles in the United States, including those PSEG-LI recently installed in the Town, are treated before use with Pentachlorophenol (“Penta”) – a heavy-duty, EPA-registered wood preservative regulated under the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA).  The Town sought to justify the ordinance requiring warning signs on the ground that the utility poles allegedly posed a significant risk to residents who touch them, and to the environment itself, ostensibly through migration of Penta into groundwater (although none has been documented in amounts exceeding any applicable maximum contaminant or action level).  During the public debate that followed, and in its Complaint to the District Court, PSEG-LI pointed out that Penta is registered for exactly – indeed, solely – this use, based on a comprehensive EPA health and environmental risk assessment.

On February 4, the District Court declared the ordinance an unconstitutional attempt to compel noncommercial speech. In so doing, the Court hewed closely to the standard First Amendment analysis with respect to government-compelled speech.


Continue Reading Ordinance Requiring Pesticide Warning Signs Found to Violate First Amendment

On January 28, 2016, by a 3-2 vote, the California Public Utilities Commission (“CPUC”) agreed to extend California’s net metering program. The CPUC’s decision rejected proposals by three of the
Continue Reading California Public Utilities Commission’s Successor Net Metering Decision and Trends in Rate-Making