Municipalities want to limit carbon emissions. Pa. utilities want to preempt them

Nineteen states have passed legislation banning local governments from regulating utilities within their borders

By: - November 26, 2021 6:30 am

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Mirroring a sudden national trend, legislation to ban municipalities from regulating utility hook-ups within their boundaries is advancing in the Pennsylvania General Assembly.

Two bills — both now sitting in the state House — would ban local governments in Pennsylvania from restricting, prohibiting, or otherwise discriminating against a utility based on the energy source that powers it.

Proponents say the bill is intended to safeguard local consumers’ choice. But opponents have argued the bills are a transparent attack on municipal climate action to limit carbon intensive utilities.

So far, only a handful of liberal urban bastions, such as San Jose, Calif., have actually banned natural gas utility hook ups in new construction. Other cities and states have passed building codes that require or offer incentives for electrification, with some exceptions, according to S&P Global.

But in a counter attack, nineteen states have passed legislation preempting local governments from passing such laws, Another five states, including Pennsylvania, are considering similar measures.

The House proposal is sponsored by state Rep. Tim O’Neal, R-Washington. O’Neal said he’d talked to utility companies about the bill to tweak the language, but got the idea for it himself after reading news about other cities’ utility policies.

“We’ve seen preemption work in other situations where local municipalities making a decision didn’t make sense for the Commonwealth overall,” O’Neal told the Capital-Star.

In fact, no local government in Pennsylvania has  yet passed such a policy. Philadelphia released a study looking at how to adapt its municipal gas utility to the changing climate., But the city says it has no plans to ban natural gas.

The national preemption effort has been led in part been by the American Gas Association, a trade group for gas utilities, according to the Washington Post. Emails acquired by WHYY-FM show that the AGA, private utilities UGI and Columbia Gas, and despite the city’s stated opposition, Philadelphia’s public gas utility all helped draft the Senate legislation. O’Neal’s proposal is similarly worded.

David Masur, executive director of PennEnvironment, an environmental group, said the entire debate preemption is an affront to self-determination, regardless of if any Pennsylvania municipality ever even bans natural gas hook-ups.

“The most liberal municipalities are not doing it, but let’s say they do. They are going to do it implicit on the idea that it’s what their constituents want and support” Masur told the Capital-Star. “You won’t see it in places like Snyder County because that’s not the politics of their constituents.”

Preemption, explained: How Pennsylvania’s biggest city and the Legislature grapple over power

He also pointed to potential real world consequences for the state’s greenhouse gas emissions if the bill becomes law. The state already is among the top carbon emitters in the country.

According to an April 2021 PennEnvironment report, electrifying buildings in Pennsylvania would reduce state carbon emissions over the next 30 years by 13.6 million metric tons. Such reductions will be impossible to attain, Masur said, if the proposal becomes law.

Amy Sturges, executive director of the Pennsylvania Municipal League, which represents 117 cities, boroughs, townships and other local governments in the commonwealth, said the bill also could unintentionally block local governments from enacting climate action plans.

The league, Sturges said, is concerned because the bill is so broadly written. If enacted, courts could interpret its ban on discrimination against an energy source as preempting local governments from offering incentives for energy efficient appliances, weathizing homes, or for driving less.

“We should not be discouraging this type of local action,” Sturges told the Capital-Star. “This is where local governments can be innovative and work with their communities, their business leaders, their universities, and come up with ways to solve problems.”

There is one exemption in the bill — it carves out zoning as an allowable use of local authority to limit certain energy sources.

“If there was a an ordinance in a municipality that dealt with the placement of solar panels, that that that could not be considered discrimination,” Sturges said.

Sturges added that she did not believe that most cities could, under existing state law, ban gas hook ups if they wanted to. That power, she said, fell to the state’s Public Utility Commission. 

A commission spokesperson declined to comment on pending legislation.

Both versions of the proposal are sitting in the lower chamber awaiting further action. The Senate version passed the upper chamber in October 35-15.

Such a margin is more than the two-thirds majority needed to override a veto, which may be necessary. In an email, Elizabeth Rementer, Gov. Tom Wolf’s spokesperson, said the Democratic chief executive opposes the bill.

“This would hinder a municipality’s ability to consider clean energy options, especially municipalities with local climate action plans,” Rementer said.

This isn’t the General Assembly’s first push to stop municipalities from exercising local control on environmental issues. In 2017, Wolf vetoed a bill that would have banned local governments from taxing or banning plastic bags.

Looking to boost minimum wage, Pa. Dems want to end preemption. That’s a heavy lift

A temporary preemption measure lasting for a year was then slipped into the state’s 2019 budget. That was again extended in 2020, but finally expired this June. A lawsuit challenging how the General Assembly passed the temporary ban is ongoing.

Outside of environmental issues, preemption of local governments is also fought in Harrisburg to block cities from raising the minimum wage or setting tighter gun laws.

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Stephen Caruso
Stephen Caruso

Stephen Caruso is a former senior reporter with Pennsylvania Capital-Star. Before working with the Capital-Star he covered Pennsylvania state government for The PLS Reporter.