Appeals court clears way for eminent domain suit against Sunoco Logistics

• Jon Hurdle
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  Jon is an experienced journalist who has covered a wide range of general and business-news stories for national and local media in the U.S. and his native U.K. As a former Reuters reporter, he spent several years covering the early stages of Pennsylvania’s natural gas fracking boom and was one of the first national reporters to write about the effects of gas development on rural communities. Jon trained as a general news reporter with a British newspaper chain and later worked for several business-news organizations including Bloomberg News and Market News International, covering topics including economics, bonds, currencies and monetary policy. Since 2011, he has been a freelance writer, contributing Philadelphia-area news to The New York Times; covering economics for Market News, and writing stories on the environment and other subjects for a number of local outlets including StateImpact. He has written two travel guidebooks to the European Alps; lived in Australia, Switzerland, Israel, and Saudi Arabia, and visited many countries including Ethiopia, Peru, Taiwan, and New Zealand. Outside of work hours, Jon can be found running, birding, cooking, and, when weather permits, gardening in the back yard of a Philadelphia row home where he lives with his partner, Kate.

A Pennsylvania appeals court on Wednesday rejected an attempt by Sunoco Logistics to throw out a challenge to its planned Mariner East 2 pipeline, clearing the way for the environmental group Clean Air Council to argue against the company’s use of eminent domain to build the pipeline.
The Commonwealth Court denied the company’s request for an immediate review of an earlier decision by the Philadelphia Court of Common Pleas, which ruled in favor of the environmental group and two affected landowners.
Alex Bomstein, an attorney for the Clean Air Council, said the group now expects the case to go back to the Common Pleas court which will hear arguments on the eminent domain case.
The company plans to build the 350-mile pipeline to carry natural gas liquids from  western Pennsylvania to a processing plant at Marcus Hook near Philadelphia. It is using eminent domain in an attempt to build the pipeline on land where the owners have refused its offers of compensation.
Some local courts have ruled in favor of the company, and some of those cases are now under appeal, Bomstein said.
“We are pleased to be moving ahead again with our challenge to Sunoco’s illegal use of eminent domain for private gain,” said Joseph Otis Minott, Executive Director and Chief Counsel of Clean Air Council.
The group argues that Sunoco is not entitled to use eminent domain to build the pipeline because it has not obtained a certificate of public convenience from the Pennsylvania Public Utility Commission. It also argues that the pipeline, which would extend to Ohio, is predominantly an interstate pipeline and therefore cannot be regulated by the PUC, whose jurisdiction covers only activities within Pennsylvania.
The suit also contends that the company has no constitutional ability to use eminent domain because the liquids carried by the pipeline would be for export and therefore would have no public benefit.
Sunoco argues that the original certificate, combined with recent certificates of public convenience it received from the Public Utility Commission to expand the Mariner East 1 pipeline in Washington County, give it the power of eminent domain. The Public Utility Commission, in a brief to the courts, defended its decision to grant the certificate of public convenience, but states it takes no position on whether or not Sunoco’s use of eminent domain in this case is legitimate.
Although the Federal Energy Regulatory Commission regulates interstate pipelines, it does not have the authority over eminent domain cases, Bomstein said. “There is no interstate eminent domain pipeline authority for a pipeline that would transport natural gas liquids,” he said.
In February, Common Pleas Court judge Linda Carpenter ruled that the plaintiffs’ case could proceed, saying there was “ample” evidence to support their argument that the company would be engaged in interstate commerce if it built the pipeline. The company appealed that ruling to the Commonwealth Court.
While some landowners continue to fight eminent domain in the courts, the company is planning to start building the pipeline in the summer or fall, and has been projecting an “air of inevitability” in its dealings with landowners, Bomstein said.
The company told Ellen Gerhart, who owns 27 acres in Huntingdon County, that it expects to begin construction in the late summer or early fall, according to a letter to Gerhart obtained by StateImpact. Gerhart has been fighting the company’s plan to build on her property, and has rejected its offers of compensation.
“Sunoco Pipeline L.P is writing to inform you that construction activities for Mariner East 2, also known as the Pennsylvania Pipeline Project, are expected to begin late summer/early fall 2016,” said the letter, signed by Bart Mitchell, a land project manager representing Sunoco.
Jeff Shields, a spokesman for Sunoco, said the timing of construction mostly depends on obtaining permits for land disturbance and water crossings from the Department of Environmental Protection. “The late summer/early fall time frame is what we have estimated,” he said.
Asked whether the company expects to win eminent domain cases that would enable it to begin construction, Shields said the “main case” involves three Cumberland County property owners who appealed to the Commonwealth Court after losing in Common Pleas Court. The case was argued before a panel of judges on March 9, and a ruling is awaited, he said.
Shields declined to say how many eminent domain cases the company is fighting, and had no comment on the Wednesday’s Commonwealth Court ruling.

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