Judge denies latest call to halt Mariner East 2 construction

A Pennsylvania judge on Thursday rejected a request by opponents of the Mariner East 2 pipeline to reconsider his earlier denial of an order that could have halted construction of the line.

Judge Bernard Labuskes of the Environmental Hearing Board said Clean Air Council and two other environmental groups had not presented information in their request for reconsideration that he had not previously considered or would justify taking another look at their case.

The judge also denied the plaintiffs’ call for an expedited hearing on the merits of the case to be held on March 13, saying that an accelerated schedule would create a disadvantage to the pipeline’s builder, Sunoco Logistics, and the Department of Environmental Protection, which issued its final permits for the project on Feb. 13.

The parties have not reached a pre-hearing agreement on matters such as conducting discovery and producing expert reports, and imposing an expedited schedule on Sunoco and DEP would place a significant burden on them, the judge said.

“While we understand why the appellants want to move with such forthright speed, we cannot ignore the resulting prejudice to Sunoco and the Department,” the judge said.

He acknowledged that Clean Air Council has the “very legitimate concern” that waiting too long to hold a hearing on the merits could render much of their case moot while Sunoco moves forward with construction.

The company began pre-construction work such as tree clearing and drill-pad building in Delaware and Huntingdon Counties last week, and plans to accelerate that in coming weeks. Sunoco aims to start operating the $2.5 billion, 350-mile natural gas liquids line by the third quarter.

Alex Bomstein, an attorney for Clean Air Council, said after Thursday’s ruling that requests for reconsideration are very rarely granted but that he’s looking forward to arguing for an order of “supersedeas” — which would suspend construction pending a full hearing on the merits — before the EHB on March 1-3. A spokesman for Sunoco did not respond to a request for comment.

Last week, the environmental groups argued that the construction work would cause “irreparable harm,” but failed to persuade the judge to issue an order that would have temporarily halted the start of construction.

In documents supporting their request for reconsideration, the appellants argued that Sunoco did not fully disclose its construction plans at last week’s hearing.

While the company’s attorneys discussed plans for construction through March 1, its plans actually extended beyond that, adding to the harm such as deforestation that would be caused by the project, the Council said.

It argued that the judge’s earlier denial – which he did not explain — was based on an incomplete description of tree felling and horizontal directional drilling (HDD) at some sites in Huntingdon and Delaware Counties that would take place before another scheduled hearing on March 1. Sunoco said it needed to clear trees immediately in order to meet an April 1 federal deadline designed to protect the threatened Indiana bat.

The Council cited an affidavit by Matthew Gordon, Sunoco’s project manager, describing plans for tree clearing, removal of stumps, trenching, and the installation of erosion-control devices along the whole pipeline route across southern Pennsylvania, not just the locations stated by company attorneys at last week’s hearing.

“In other words, the imminent irreparable harm from Sunoco’s activities is not limited to five HDD sites and tree clearing in endangered Indiana Bat territory … but in fact includes essentially all activity permitted under the three Chapter 102 permits,” the Council said, referring to one of the permits issued by the DEP.

The Clean Air Council argued that the information was provided by the company — in a two-inch thick binder — for the first time at last week’s hearing, and that they had not had time to read it beforehand.

“The revelation that the imminent, irreparable harm will be much greater than was discussed provides extraordinary new circumstances justifying reconsideration of the Board’s decision to deny the temporary supersedeas,” the Council said, referring to the order that the judge denied last week.

Gordon’s affidavit, dated Feb. 17, describes the work to be done over the following 21 days. It includes nine more drilling sites in Delaware and Chester Counties where there would be tree clearing and site preparation similar to the first wave of activity.

Gordon said the company needed to start work immediately, rather than wait for the outcome of the Council’s case, because missing the deadline for tree-clearing in the threatened-species areas would mean that those portions of the project would be halted until after the bat’s breeding season, which ends in November.

“Any temporary delay of commencement of construction of the project in these areas will effectively result in a complete shutdown of critical portions of the project for seven months,” the affidavit said.

Last week, the company began clearing trees and preparing drill sites at Raystown Lake in Huntingdon County and Aston in Delaware County, the first two locations to see initial work.

Critics say the long-awaited DEP permits were issued although deficiencies remained in Sunoco’s application, and other permits and approvals were still needed from the U.S. Army Corps of Engineers. The Army Corps gave Sunoco approval to begin work at Raystown Lake this week. It has yet to issue permits on the rest of the route.

In its response to Clean Air Council’s latest requests, Sunoco said it confined its description of construction plans to the period leading up to March 1 because of an agreement between the judge and the parties to focus on that period.

The company accused the environmental group of misrepresenting the work that will be done during the 21-day period specified in Gordon’s document.

It said the Council failed to focus on the period to March 1 but instead discussed “all the reasons” why it opposes the entire project.

“Whether intentional or in their haste to seek yet another bite at the temporary supersedeas apple, Appellants misrepresent what is stated in the Gordon affidavit and what occurred at the February 16 conference,” Sunoco said, urging the judge to reject the council’s latest requests.

In its own response, the DEP opposed the council’s request for reconsideration, arguing that it had not met a statutory requirement that would allow the judge to reconsider his ruling. The DEP also said that the requested hearing on March 13 could be “extremely burdensome” because the parties had not agreed on matters such as discovery.

The project will carry propane, butane and ethane from the Marcellus Shale of southwest Pennsylvania to an export terminal at Marcus Hook near Philadelphia.

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