Pennsylvania Public Utility Commission Collects over $855 Million in Gas Drilling Impact Fees

The Pennsylvania Public Utility Commission (PUC) earlier this summer announced the final approved distribution of $223.5 million in disbursements under Act 13 of 2012 (Act 13), which imposed an Impact Fee on natural gas producers. Over the past four years, the PUC has collected and distributed more than $855 million in impact fees.

The PUC’s Act 13 reporting website provides a detailed breakdown of the payments to county and municipal governments, along with specifics on how much money has been collected for each year, since 2011; how that money has been allocated, by category; and comparisons to previous years. The interactive website provides numerous reports regarding the collection and distribution of these funds, along with graphical data regarding the top paying producers, well count breakdowns and top receiving counties and local governments.

Visitors to the Act 13 website can search and download statistics such as money paid by producers or money disbursed to state, county or local governments. The information also breaks down the distribution calculations outlined in the law in areas such as eligible wells per county/municipality; and distributions to municipalities and counties with qualifying wells; and to municipalities that are located within a county with qualifying wells and are contiguous to a municipality with wells or within five miles of a municipality with wells (based on population and highway miles calculations).

The Impact Fee producer payments for 2014 total $223,500,000. Of those funds, $123,300,000 will be distributed to county and municipal governments who are directly affected by drilling. Also, $18 million will be distributed to state agencies that are defined by the Act. The remaining $82,200,000 will be placed into the Marcellus Legacy Fund, which was established under the law to fund environmental, highway, water and sewer projects, rehabilitation of greenways and other projects throughout the state.

Producer Impact Fee payments are due to the PUC on April 1 of each year. Distributions of the money collected by the PUC are due to county and municipal governments by July 1 of each year. County and municipal government information on how the 2013 Impact Fee monies were allocated was due to the PUC on April 15, 2015.

Under the Unconventional Gas Well Impact Fee Act, signed into law as Act 13 of 2012, the PUC is responsible for implementing the imposition, collection and distribution of an unconventional gas well fee (also called a drilling impact fee).

If you or your business have questions regarding natural gas law, energy law or real estate law, contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C.

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DAPA and the fog of (political) war

As some of the readers of this Blog may have noticed, I have been interested in chronicling (or at least, following) the much-embattled executive Action known as DACA (“Deferred Action for Childhood Arrivals”).  See my previous post—>  Happy Birthday, DACA!  I did make mention in that post of the current legal quagmire that DACA’s companion executive Action, DAPA (“Deferred Action for Parents of Americans and Lawful Permanent Residents”), finds itself in.  At this moment, the case and the fate of DAPA hang in the balance pending a final decision from the 5th Circuit Court of Appeals.

I thought some of our readers would find it worthwhile to be given 1. a detailed chronology of the litigation with clear signposts explaining how we all got to this current state of entropy AND 2. a primer on the various legal arguments set forth by the parties in justifying either a striking of the injunction or its affirmance.


On February 16th, just 2 days before the directive was set to take effect, the Federal District Court for the Southern District of Texas issued, by way of Memorandum Opinion, an injunction against DAPA.  The Department of Justice promptly appealed the injunction to the Fifth Circuit Court of Appeals.  See .  As an emergency motion to the full appellate challenge, DOJ requested either a. a stay on the injunction pending the appeal (which would have permitted DAPA to have least gone into temporary effect) OR b. a narrowing of the scope of the injunction.  See .  In a split decision, a 3-judge panel of the 5th Circuit Court of Appeals, on May 6th, declined to do either; furthermore (in what may be the most significant harbinger of bad news for DAPA to date) that 2-judge majority held that the United States is not likely to prevail on the merits of its appeal.  See . Oral arguments on the appeal were held on July 10th. See .


This litigation is party-heavy, to say the least.  On either side of this dispute are arrayed a formidable list of state-actors, civil organizations, and law firms – all indicating the high-stakes nature of this issue.  The plaintiffs-proper who brought the injunction Action are 29 states of the Union and/or their governors.  The defendants are the respective heads of the Department of Homeland Security, U.S. Customs and Border Protection, the U.S. Customs and Immigration Services and U.S. Immigration and Customs Enforcement.  Moreover, this litigation has produced a great number of friends of the court, filing briefs in support of either side.  Among the amici are [for the Appellants] a. a group of more than 180 state representatives to Congress; b. a coalition of U.S. mayors; c. a group of 4 U.S. senators; d. a group of 15 states and the District of Columbia; e. a group of more than 30 police chiefs and sheriffs from across the United States; f. a coalition of more than 500 civic/civil liberties organizations; [for the Appellees] a. a motley (but significant) collection of members of the U.S. Congress along-side the American Center for Law & Justice and the Committee to Defend the Separation of Powers; b. a group calling itself “State Legislators in Support of Legal Immigration”.


The various legal arguments constituting the Appellants challenge to the injunction and Appellee’s support of same are dense and multi-faceted.  However, I will provide a brief overview of some of the highlights on either side.

Appellees: The initial complaint brought before the Federal District Court alleged that DAPA is, first, unconstitutional for violating the so-called “Take Care Clause” of the U.S. Constitution.  Art. II § 3 cl. 5.  Second, Appellants argued that the implementation of DAPA circumvented the notice-and-comment requirement of the Administrative Procedure Act (“APA”).  Third, that DAPA otherwise violates the APA’s prohibition on “arbitrary and capricious” executive Actions.  As to establishing standing, Appellees re-assert (and at least the Federal District Court accepted this position) the novel and stunning theory of “abdication standing” where they argue that the federal government and its delegated agencies, by issuing the DAPA directive, have simply failed to cohesively administer immigration law and, therefore, have given up a right to exclusive policy-making authority in that field.  It should be noted that the Federal District Court for the Southern District of Texas failed to issue any definitive ruling concerning either the Take Care clause or the APA’s prohibition on “arbitrary and capricious” Actions, ruling only that DAPA violated the notice-and-comment requirement of the APA.

Appellants: In defense of DAPA, Appellants re-assert standing and “political question doctrine” issues, maintaining that Appellees lack standing to challenge an Action rightfully and exclusively belonging to the executive branch.  Additionally, Appellants submit that the APA’s notice-and-comment requirements do not attach to executive directives in an immigration context where a. Congress has expressly given the executive exclusive authority over the field AND b. that the executive Action in this case was merely a “Guidance” which does not affirmatively bound any agency of the executive to act in compliance therewith and does strip any state of its sovereign powers.  Finally, Appellants argue that Appellee’s cannot make out a prima facie case for justifying an injunction – for lack of irreparable harm.


Interestingly, the policy arguments supporting either side tend to reframe the same facts in different lights.  For instance, briefs submitted by parties on either side readily acknowledge that “immigration” (particularly the undocumented alien issue) is a problem of national concern – there are, at present, more than 11 million undocumented aliens present in the United States, many of whom are children and parents of such children.

Where Appellants bring arguments showing that the Obama administration is acting in a forthright and responsible way by doing something about the problem – in the form of DACA and DAPA, the Appellee’s characterize the directives as only exacerbating “illegal immigration”.

Where Appellants argue that implementing a consistent and predictable program to shift already limited resources to focusing on legitimate national security issues related to immigration, is wise (as opposed to focusing on the removal of non-criminal, tax-paying, integrated members U.S. society), Appellee’s focus on the perceived financial burden that DAPA may have on state and local governments.

Where Appellees assert that DAPA encourages unlawful migration to the United States, Appellants underline that the directive does not confer legal status on undocumented aliens, does not preclude the possibility of removal, and does not directly require the states to subsidize the federal Action.

This essentially yin-and-yang policy argumentation pervades the submitted briefs of the two sides and suggest, at least to this writer, that the dispute is fundamentally a continuation of politics by other means.


And here we are.  Obscuring visions of a way forward on immigration, the veritable fog of political war that has stubbornly set over this legal dispute means it is very difficult to speculate about DAPA’s future.  We all await the 5th Circuit’s Opinion on the merits which, despite being expedited, has no known release date.  Stay tuned.  To read what I consider to be a rather good, condensed summary of these same events and positions: See .

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New Jersey Supreme Court: Warrant Requirement a Burden on Citizens

There has been a lot of commentary on the recent New Jersey Supreme Court case, State v. William L. Witt, (A-9-14)(074468), which essentially did away with a warrant requirement for the search of a vehicle in many circumstances.  What the Court ultimately ruled was that, like Pennsylvania a little over a year ago, New Jersey was going to follow the federal warrant requirements, which are quite a bit more relaxed than New Jersey’s.  In determining to exempt automobiles from the exigency requirements, the Court rested heavily on the presumption that the warrant requirement is unduly burdensome on both police and the suspect, as cars are typically impounded while the long wait for a warrant occurs.  See Slip op. at 15.

The case started when William Witt was pulled over by Carney’s Point Township Police Officer Joseph Racite for failing to dim his high beams.  When Officer Racite approached the car and began speaking with Witt, he noticed the smell of alcohol and put Witt through a series of field sobriety tests.  Witt failed them all.  Subsequently, Witt was arrested for DWI and placed into the back of Officer Racite’s police car.  Up to this point, Officer Racite had acted by the book.  (As a side note, the initial stop was likely inappropriate.  The statute – N.J.S.A. 39:3-60 – requires drivers to dim their high beams “whenever the driver of a vehicle approaches an oncoming vehicle within five hundred feet.”  But Officer Racite was stopped; thus, he was not an oncoming vehicle.  The Court declined to entertain this argument, though, because Witt had not brought this defense at trial.  At trial, he had not even contested the validity of the stop.)

After Witt was cuffed and placed in the police car, Officer Racite then began searching for intoxicating substances.  Under the federal automobile exception, this is allowed.  Once an officer has probable cause that a crime has occurred, he has constitutional authority (under the current case law, at least) to search the car for evidence of the crime that he had probable cause to believe occurred.  From there, the plain sight doctrine applies, meaning that if in the search for one object, the officer discovers another, that evidence may be used as the basis for an entirely different crime.  This is what happened here.  Officer Racite found the firearm in the car and then charged Witt with firearms offenses.

Under New Jersey state law at the time, however, Officer Racite was required to have exigent circumstances.  In short, he needed to be able to articulate reasons why either his life was in danger or the evidence would be destroyed in the time it would take to get a warrant.  Because he could not articulate a reason for either (Witt was handcuffed in the back of the police car), both the trial and appellate courts found that the evidence must be suppressed.

For the reasons below, the New Jersey Supreme Court overturned its prior decisions requiring exigent circumstances for warrantless automobile searches and adopted the federal automobile exception.  Fortunately for Mr. Witt, the decision was prospective.  Because the law at the time of his arrest required exigent circumstances, the evidence in his case remained suppressed and he was not convicted of the firearms offense.  Going forward, however, police do not need a warrant to search your automobile, provided they have probable cause to arrest you.

While federal courts have allowed officers to search vehicles and seize evidence from an automobile without a warrant, New Jersey (and until last year, Pennsylvania) required more.  New Jersey had, until last week, required the existence of exigent circumstances.  In other words, there had to be a reason, such as officer safety or the imminent destruction of evidence, to search an automobile without a warrant or consent.

The New Jersey Supreme Court relied on several factors in dispensing with the exigency requirement.  First, the Court found that “the multi-factor exigency formula is too complex and difficult for a reasonable police officer to apply to fast-moving and evolving events that require prompt action.”  Slip op. at 3.  While there is a good argument that a stop in which the suspect is handcuffed and sitting under arrest in the police car can conceivably constitute “fast-paced” or “requir[ing] prompt action,” the Court did rely solely on the “fast-paced” argument.  The Court primarily relied on the same reasoning that Pennsylvania’s adopted in 2014: “The Pennsylvania high court ultimately concluded that it was ‘difficult, if not impossible, for police officers in the field to determine how [it] would rule in motor vehicle search and seizure cases, the circumstances of which are almost endlessly variable.’’  Slip op. at 20-21.

Thus, as the ACLU pointed out in its amicus brief, the New Jersey Supreme Court decided that rather than making the point simple: “Get a warrant before you search, unless 1) you’re in danger or 2) the evidence is at risk,” the Court erred on the side of making police work easier.  While there’s nothing inherently wrong with making police officers’ jobs easier, in this case the Court placed simplicity over the Constitution.

The Court’s greatest concern, however, was that getting a warrant – even a telephonic warrant – prolongs the detention and is dangerous to both police and the suspect.  This is because the Court found that the longer any individual remains on the shoulder of the road, the higher the likelihood of an accident.  This is probably true, and the Court does cite a fair number of anecdotes to support its contention, but as the dissent points out admirably, this misses the point.  The prolonged wait was not an inherent part of telephonic warrants, but was rather an inefficiency caused by the state, itself.

The Court rested its decision on the fact that telephonic warrants take a long time to get.  A six-month pilot program conducted three years ago in Burlington County found that the goal of the police should be to obtain a telephonic warrant within a half hour, with 45 minutes being the longest amount of time one should have to wait.  The Burlington program showed that warrants were approximately 59 minutes in the making, while the New Jersey State Police [NJSP] found that they had to wait nearly two hours for a warrant.

Because of the long time in obtaining warrants, it appeared that more New Jersey officers were seeking consent searches, which the Court noted could be a big problem.  After all, NJSP had been through a major racial profiling scandal in the late 1990’s and early 2000’s, and the Court was correctly suspicious of whether consent searches were truly consensual.  So-called consent searches placed the driver in an “inherently coercive predicament . . . [because the driver] is stopped on the highway” and facing the choice of full cooperation with a potentially unconstitutional request to search, or increased police scrutiny and possible citation.  “[I]t is not a stretch of the imagination to assume that the individual feels compelled to consent.”  Slip op. at 45.

The Court seemed to be acknowledging that a delay of an hour prompted police to use a more intrusive and constitutionally suspect maneuver.  Indeed, NJSP acknowledged that the “current patrol policy and practice is to exhaust the consent search option prior to making a determination to seek a warrant, telephonic or in-person.”  Slip op. at 35.  It would seem as though the Court’s concern about the inherent voluntariness of a “consent” search was justified.  After all, “exhaust[ing] the consent search option” certainly suggests that NJSP troopers are repeatedly asking for consent, which itself suggests that a fair amount of pressure is being placed on motorists to allow searches.  The 95% consent rate further supports this.

The Court’s solution, however, was not to scrutinize the consent where given, but to eliminate the need for consent or exigency altogether.  Rather, it moved to the next part of the analysis, and attempted to couch the abdication to the State in terms of constitutional protection.

The Court reasoned that a two-hour wait, followed by impoundment of the car (to facilitate a search), was infinitely more intrusive than an on-site search.  While this is true, it entirely misses the point.

First, as any elementary school student should be able to recite, the federal, democratic republican system of government we ostensibly enjoy (and which, notably, is guaranteed to the states in the body of the Constitution), provides that the three branches of government are divided and serve to check one another’s power.  Thus, the legislature passes and funds laws; the executive executes them; and the judiciary keeps watch to ensure everything is being done fairly (John Marshall’s judicial review notwithstanding).  The New Jersey Supreme Court, however, just condensed that, at least regarding automobile searches.  Its decision here gives police officers (part of the executive branch) the judicial authority to determine whether probable cause exists.  Thus, the officer does not actually have to have probable cause.  Rather, he just needs to reasonably believe he does.  That the federal government or other states allow this is no argument (indeed, the U.S. Supreme Court’s own reasoning in Obergefell – the gay marriage case – belies this, as many states and the federal government had failed to recognize same-sex marriages as of only a few years ago.  The U.S. Supreme Court was unconcerned with the number of states that chose not recognize these marriages).

Second, the Court assumes that impounding a car while waiting to procure a warrant survives constitutional muster, in and of itself.  If there is no warrant, and no exigency, then impounding the car is unconstitutional in the first place.  If it is unconstitutional to search the car, then it is surely unconstitutional to seize the whole thing while waiting for permission to search it.

Should no warrant be forthcoming, then what cause was there to seize the car in the first place?  The Court seemingly authorizes the unreasonable seizure of the car while police wait for the judiciary to determine whether a mere search is constitutional.

), is the fact that the entire constitutional analysis occurred within the framework of a one-county pilot program three years ago.  The purpose of any pilot program is to test ideas and then determine how to fix the mistakes.  New Jersey has a telephonic warrant program that seems to work well for obtaining Temporary Restraining Orders (TRO).  And the dissent notes that there was only a 14 minute gap between the target time and the actual time in local police obtaining warrants.  Could not, then, the state give it one more try?

Rather, the state spent the last several years appealing the exigency requirement whenever it had the chance.  You might say they “exhausted” the appellate option prior to Witt.

In short, the Court found that because there were likely abuses occurring by the police and because New Jersey was having a difficult time efficiently following the constitutional dictates of the Fourth Amendment and its own laws, it was better to merely adopt the federal exemption.  While acknowledging that the federal courts are perfectly fine with the automobile exception, and acknowledging the dangers that police officers face, exempting the government from the constraints of the constitution is not the answer.  Would that New Jersey (and Pennsylvania, for that matter) had considered other options before throwing in the towel.

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PennEast Submits Application To FERC For PA to NJ Pipeline

Today, September 24, 2015, PennEast Pipeline Co, LLC, located in Wyomissing, PA, said it is submitting its application to the Federal Energy Regulatory Commission (FERC) for a permit to proceed with construction of the proposed about $1 billion PennEast Pipeline that will offer natural gas to consumers in Pennsylvania and New Jersey. 

PennEast is requesting that FERC issue a Certificate of Public Convenience and Necessity, which would authorize PennEast to construct, install, own, operate and maintain the 118-mile, 36-inch diameter PennEast Pipeline.

Upon completion, the underground natural gas pipeline would deliver about 1 billion cubic feet of natural gas per day and address the current pipeline constraints that result in higher costs, increased price volatility and reduced reliable energy supplies for consumers.

Pending regulatory approval and issuance of a FERC certificate, PennEast anticipates beginning construction in 2017.

It is not yet clear if PennEast intends to seek to utilize condemnation to secure property rights.

The PennEast Pipeline partners are AGL Resources; NJR Pipeline Co; PSEG Power LLC; SJI Midstream; Spectra Energy Partners and UGI Energy Services form the PennEast Pipeline Co. UGI Energy Services serves as the project manager and would be the operator of the proposed PennEast Pipeline.

If you or your business have questions regarding energy law or real estate law, contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C.

The current proposed route is below:

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EPA Announces $400,000 in supplemental brownfields funding to help cleanup, redevelop Allentown site

Today, September 23, 2015, the U.S. Environmental Protection Agency (EPA) announced $400,000 in supplemental funding to the city of Allentown, Pa. to support an ongoing brownfields cleanup project at the Allentown Metal Works Site.

The Allentown Revolving Loan Fund grant is one of 31 supplemental brownfields grants totaling $13.2 million that EPA announced today for brownfields projects that are already receiving revolving loan funds and have a successful cleanup project underway.

“These funds will help the Allentown community continue its successful brownfields cleanup work and redevelopment of the Allentown Metal Works site,” said EPA Mid-Atlantic Regional Administrator Shawn M. Garvin. “EPA’s Brownfields Program empowers communities like Allentown and other stakeholders to work together to prevent, assess, safely clean up, and sustainably reuse brownfields.”

As a previous recipient of brownfields revolving loan funds, Allentown has already overseen the removal of drums, transformers and contaminated soil from the 17-acre site at 606 South 10th St., Allentown.  The supplemental funding will help increase the scope of the work to also include the abatement of lead-based paint, asbestos and other wastes.

EPA’s Revolving Loan Fund provides a level of funding for cleanups that may not be available through traditional financing options or through other brownfields grants, serving as the gap financing needed to jump-start the redevelopment process.  The supplemental funds help keep the cleanup momentum going so that more cleanups can be completed.

More information on EPA’s Brownfields program:

More information on Brownfields Revolving Loan Fund grants:

If you or your business have questions or are looking for funding opportunities, contact attorney Jeffrey A. Franklin at Prince Law Offices, P.C.

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Birthright Citizenship – A Closer Look

Watching the recent Republican Presidential debate, I felt that one particularly interesting topic discussed among the contenders was U.S. policy concerning birthright citizenship.  At least one candidate has vowed that upon becoming President of the United States he will sharply curtail our nation’s “liberal” construal of birthright citizenship – specifically stripping such right from children born within the United States and its territories but to parents who are not themselves lawfully present therein.

Politics aside, that got me thinking about the current state of birthright citizenship law and its possible dimensions.  I became interested in determining whether current U.S. birthright law is really as “liberal” as certain Republican candidates would lead us to believe.  Indeed, a child born in the U.S. to unlawfully present parent/parents occurred to me to be only one context out of potentially many wherein the scope of birthright citizenship is tested.

What about instances where a child of a U.S. Citizen is born outside of the territorial U.S.?  What if the genetic/gestational mother of the child born outside the territorial U.S. is not a U.S. Citizen but the child’s father is and the parents are not married?  Is such child then an automatic U.S. citizen; is she entitled to naturalization?

The answers to these questions are surprising – In no instance is a child born outside of the United States assured birthright citizenship.  Indeed, even in the case of a child born to two U.S. Citizens, but abroad, U.S. Citizenship is not automatically conferred.  Furthermore, the Immigration and Naturalization Act draws a big distinction between children born in and out of wedlock for determining the child’s right to U.S. Citizenship, where one parent is a U.S. Citizen and the other is not.  See INA Sec. 101(b); Sec. 301(d).

[WEDLOCK]If the parents are indeed married at the time of the child’s birth, and one parent is a Citizen while the other is a U.S. national, the U.S. Citizen parent MUST have resided continuously within the territorial U.S. no later than 1 year prior to the child’s birth.  If the parents are married, and one parent is a Citizen while the other is a foreign national, then the U.S. Citizen parent must have resided within the territorial U.S. for at least a continuous 2 year period after the age of 14.

[OUT OF WEDLOCK – Father is U.S. Citizen] The child born abroad will NOT have right to Naturalization unless a) paternity is clinically proven by clear and convincing evidence; b) the father was a U.S. Citizen at the time of the child’s birth; c) the father has agreed to provide financial support to the child until the child reaches 18 years of age.  Additionally, before the child reaches 18 years of age, one of the following criteria would also have to be met: a) a court of competent jurisdiction declares the U.S. Citizen, the father of the child in question; b) the child is legitimated under the laws of the child’s domicile or residence; c) or the father acknowledges the child as his by sworn oath or affidavit.  See INA Sec. 301(d),(e),(g)  “Legitimated under the laws…” generally relates to a jurisdiction’s statutory means or rules for recognizing a child as (in fact) the child of a parent (typically the alleged father).  For example, some world nations maintain that a child is not the legitimate child of an alleged father if the father’s name was not on the birth certificate.  Conversely, other nations maintain that a child is legitimated at any time the father is proved to be the natural/genetic father of the child in question.

As the foregoing illustrates, U.S. birthright law may not be as liberal as some would suggest.  First of all, considering an “in wedlock” scenario – it appears counter-intuitive (at best) that the pre-requisites for birthright citizenship are higher when the married parents are both “Americans” (one being a U.S. Citizen, the other being a U.S. “national”) compared with when one parent is a foreign national.  Moreover, in an “out of wedlock” scenario, it is evident that current U.S. Immigration Law may promote “dead beat” dads or at least gives a male an unsettling degree of license to have “illegitimate” children abroad while maintaining the unilateral power of denying to his child the benefits of U.S. Citizenship.

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“Of all tyrannies, a tyranny exercised for the good of it’s victims may be the most oppressive… those who torment us for our own good will torment us without end, for they do so with the approval of their own conscience.” C.S. Lewis

I am cigar smoker, fan, and enthusiast. I enjoy cigar smoking so much that seven years ago myself along with nine other cigar smoking enthusiasts formed the Lehigh Valley Cigar Club. Our official motto is “To Promote And Protect The Enjoyment of Cigars In The Lehigh Valley Area”. We now have over two hundred members. Since then climate has changed dramatically.

On June 13, 2008, Governor Edward Rendell signed into law, The Clean Indoor Air Act, Act 27 of 2008. With some exceptions, such as a private residence (except those licensed as a child care facility), a private social function where the site involved is under the control of the sponsor (except where the site is owned, leased, or operated by a state or local government agency) and a wholesale or retail tobacco shop, the legislation prohibiting smoking in 95% of public places or workplaces.

Around the same time, Governor Rendell proposed a new tax as part of his 2009 budget plan, including the imposition of a 36¢ per ounce tax on loose tobacco and for every ten cigars. The proposed “sin tax” was overwhelmingly defeated by the state legislature.

On January 23, 2015, House Bill 202 was introduced and proposed to extend the Pennsylvania Clean Indoor Air Act to include a ban on smoking in “drinking establishments” in the state of Pennsylvania.

Governor Tom Wolfe also proposed, as part of his 2015 state budget, that cigars be taxed at 40% of the wholesale value. Governor Wolf’s proposed tax on cigars will drive the cigar industry out of Pennsylvania, which aside from Florida is the only state that does not tax cigars. As a result, Pennsylvania is home to four of the eight largest cigar distributors in the United States which provide thousands of jobs to Pennsylvania residents. A cigar tax that onerous could cost thousands of Pennsylvania residents jobs as their employers would likely move to Florida.

Proponents of the tax argue the tax will generate revenue while health advocates argue that it will reduce the number of smokers.  On its face, the two goals would seem to be at odds with each other as reducing the number of cigar smokers reduces the effectiveness of the proposed tax as a revenue generator.  However, the tax will have a minimal impact on the amount of smokers as those who choose to exercise their right to smoke will continued to do so but at a higher cost.  It is insulting to suggest that the proposed cigar tax is motivated by a higher good. The argument that tax will reduce cigar smoking is nothing more than a pretext to justify the tax. It’s just another way of saying we are taxing you for your own good.

“Happiness? A good cigar, a good meal, a good cigar and a good woman – or a bad woman; it depends on how much happiness you can handle.” –  George Burns

In the Declaration of Independence, Thomas Jefferson made his famous statement of a peoples’ inalienable right to “life, liberty, and the pursuit of happiness”. Historians have argued that Thomas Jefferson took the phrase from John Locke who used the phrase in his book “An Essay Concerning Human Understanding”. Locke believed that the pursuit of happiness is the foundation of liberty as it involves the freedom to make decisions that lead to true happiness, not necessarily decisions that give us immediate gratification, but true long term happiness.

The pursuit of happiness is the freedom to choose how one lives so long as it does not interfere with right of others to pursue happiness.  The legislature may not interfere with my right to smoke a cigar by a tax to generate revenue.  As a cigar smoker, my individual pursuit of happiness includes the right to choose to smoke cigars.

“If smoking is not allowed in heaven, I shall not go.” – Mark Twain

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