Withholding Consent – May 3, 2013

I think the Borough’s best response to the Columbia Gas letter would begin and end:

“Thanks for your letter.”

Attorney Gregg Rosen’s letter on behalf of the gas company is strange. Its primary goal is to wipe out the procedural record of the last eight months, so that embarrassing and potentially legally-significant facts can’t be raised by the Borough in any future litigation. There’s no good reason for the Borough to tie its own hands like that.

The secondary purpose is to lay out Columbia Gas ‘ legal strategy if they decide to sue later. Odd bits:

  • the fascinating characterization of Penn State University as “a member of the public” entitled to utility service, rather than a private corporation, as argued by Penn State to support Right-to-Know exemption, or a publicly-supported university, as evidenced by state funding. State related? Public? Penn State representatives adjust their self-definition to meet their needs on a case by case basis. Would this “member of the public” have personal liability too?
  • the reference to Columbia Gas’ right of “eminent domain,” since eminent domain generally refers to the taking of private property for a public purpose, not, as in this case, the taking of public property for a private purpose.

The legal argument is essentially this:

“Columbia Gas governs the Borough of State College, by authority delegated by the Pennsylvania Legislature.”

Their problem is, they would still like the layer of additional legitimacy represented by the explicit consent of the actual municipal government of State College – the duly elected Borough Council and its administration, by authority delegated by the voters of State College.

And that consent is currently being withheld.

Very awkward, for Columbia Gas, Penn State and the Pennsylvania Legislature too.

Maybe the Borough could request that Columbia Gas Inc. carry its argument to its logical conclusion, and take over responsibiltity for police protection, firefighting services, trash and compost collection, road and bridge maintenance, tax collection and all the other essential services provided to the community, by the municipal government, as authorized and funded by taxpayers for the protection of our health, safety and welfare.

In other news:

Residents will be speaking to the Penn State Board of Trustees this afternoon at the Penn Stater.

I filed a Right-to-Know request today with the Pennsylvania Public Utilities Commission. 5.3.13 PUC Right to Know Request (referencing 3.15.13 Sulkowski to Kerner and 3.22.13 Kocher to Watt).

The PUC request also relates to one of the documents obtained at this week’s three-hour review session – Borough Solicitor Terry Williams’ memo to the Borough Council on April 1, addressing the legal issues involved in the pipeline permitting process:

As investigations continue, it’s becoming increasingly clear that gas corporations are currently self-regulated, operating outside the legal jurisdiction of municipalities, the State, the Public Utilities Commission, and the US Department of Transportation Pipeline and Hazardous Materials Safety Administration. Companies may be required to notify various entities about their plans, but providing notice is not the same as obtaining meaningful, informed, competent oversight, plan approval and public permission for projects with public impacts.

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