Pennsylvania

Energy. Environment. Economy.

A new front emerges in the battle against eminent domain

Anti-pipeline protesters staged events across the country to show solidarity with Native Americans opposing the Dakota Access oil pipeline.

Marie Cusick/ StateImpact Pennsylvania

A pipeline protester in Lebanon County. Landowners and eminent domain attorneys see a new opening in the battle against eminent domain.

Eminent domain attorneys and their clients battling new pipelines in Pennsylvania courts feel they may have a new weapon in the fight against controversial projects like Sunoco’s Mariner East. The recent decision by the Pennsylvania Supreme Court to toss out industry-friendly provisions of the state’s oil and gas law included eminent domain for gas storage.

All across the state, private landowners have fought eminent domain takings for pipelines, arguing that the lines do not serve the public good. But they haven’t had much luck in convincing county judges, who have in all but just a few cases, ruled against landowners.

In September, a majority of the Supreme Court ruled that using eminent domain for underground gas storage violated both the federal and state constitutions. The court wrote that the public was not the “primary and paramount” beneficiary, as the state had claimed.

“Instead, it advances the proposition that allowing such takings would somehow advance the development of infrastructure of the Commonwealth. Such a projected benefit is speculative, and, in any event, would be merely an incidental one and not the primary purpose for allowing these takings,” wrote Justice Debra McCloskey Todd for the majority.

The decision was cheered by lawyers like Alex Bomstein, an attorney for the Clean Air Council challenging eminent domain takings by Sunoco Logistics for the Mariner East 2 pipeline. Mariner East 2 will carry natural gas liquids from western Pennsylvania to Delaware County where it will be shipped to Scotland to make plastics.

“Mere economic benefit is not enough,” said Bomstein. “Right now in Pennsylvania nobody is starving from lack of ethane. Nobody is crying in the streets for more butane. There is no apparent public need for these things and that’s demonstrated by the fact that [the gas products] are being exported.”

Sunoco Logistics would not comment on the Supreme Court’s decision for this story but the company says some of the fuel will be offloaded in Lebanon and Berks counties, thus serving the public good by addressing potential shortages and insuring an adequate supply of heating fuel for the winter months. Pipeline opponents say that’s a ruse used to convince the courts that the pipeline will serve a public good.

The Pennsylvania Public Utility Commission granted Sunoco a “certificate of convenience,” which designates it as a public utility and allows the company to argue for eminent domain. A spokesman for the PUC said the agency is “not in a position to speculate about the future impacts of the court’s decision,” regarding gas storage, and how that may play out regarding pipeline cases.

Although the legislature gave the PUC authority to designate pipeline companies public utilities, it did not grant them authority over where and how the pipelines are installed. Once a company receives a certificate of convenience, it’s essentially a blank check to develop its infrastructure, utilizing eminent domain to seize land if negotiations with landowners over compensation are unsuccessful. The Department of Environmental Protection has oversight when it comes to earth-moving and water-crossing permits, which is practically the only chance for the public to weigh in on how the project is implemented.

The PUC says its decisions regarding certificates of convenience are public and transparent. And it insists it has no role in how the courts decide issues of eminent domain. But Sunoco has argued, and the courts have ruled, that pipeline companies can take land through eminent domain based on decisions made by the PUC. The courts have used the certificates of convenience, issued by the PUC, as conclusive evidence for allowing the exercise of eminent domain.

This puts landowners in a difficult position when it comes to challenging the original PUC decision, which they must do within 30 days. For example, if, as in the case of Mariner East, the certificate of convenience was issued for Washington County, it would be difficult for a landowner 300 miles away in Delaware County to know that the PUC’s decision may result in a new pipeline coming through their backyard several years later.

Eminent domain attorney Rich Raiders, who represents a number of landowners who have cases with Sunoco, says his clients feel left in the dark on these decisions, and that the deck is stacked against them and in favor of pipeline operators.

“These guys are used to going to the PUC, and they go in and do what they want and nobody notices,” said Raiders. “And by the time the citizen knows it happened it’s already too late.”

The PUC says their decisions are made in public, broadcast online and are based on facts and laws. PUC spokesman Nils Hagen-Frederiksen says the commissioners and staff take their responsibilities toward the public seriously.

“As you well know, the Commission is an independent, neutral agency – tasked with ensuring safe and reliable utility service at reasonable rates, and balancing the needs of consumers and utilities,” Hagen-Frederiksen wrote in an email. “Anyone has the right to disagree with a Commission decision; that’s fair, and that’s part of the process – but there is absolutely no basis to attack the Commission’s impartial approach to any case, and those kinds of claims are unfair.”

Attorney Rich Raiders says landowner notification of potential disruption by pipeline builders during the PUC’s process would help reduce the perception of bias. That’s something that would have to be taken up by the legislature.

In the meantime, Raiders has already used the Supreme Court’s decision regarding gas storage to file new briefs in some of his cases pending in common pleas courts across the state. He says the hot question for him and the landowners is whether the Supreme Court decision about gas storage could be applied to future decisions about natural gas pipelines.

“I don’t know, but they left a big fat opening for what exactly is public use and public benefit, he said. “Justice Todd raised a big red flag and that’s what they’re interested in hearing about.”

Comments

  • Joe

    Don’t know what Supreme Court they’re referring to, but I remember a U.S. Supreme Court ruling (unanimous I believe) that found that Eminent Domain did allow property to be seized for the public ‘good’ in spite of the Constitution’s specific reference to ‘use’. Their logic being that Public use is (or should be) also the Public good. Therefore, the words use and good are interchangeable!

    • Allison Dru

      It was the PA Supreme Court that made this ruling. In Delaware County, we’ve been told by Sunoco that the Mariner East 2 is entirely for export for making plastics (hence the odorless gas). The makes it for private gain, not for public use.

      • Allison Chabot

        In fact, one Sunoco representative defended against the claim that they hid the export agenda, by pointing to the transparency of the pipeline’s name: MARINER. Oh. Right.

    • Greg Greenfield

      Hi Joe, can you please check your legal references and your copies of the Constitutions of the United States and the Commonwealth of Pennsylvania? Please review the Fifth Amendment of the US Constitution, and Article 1, Sections 1, 10 and 27 of the Pennsylvania Constitution. Then please come back and comment again.

      • Joe

        I don’t have to read the 5th of the U.S. Constitution. I already know that it states ‘use’ NOT good! And further I know that the Senile Nine of the U.S. Supreme Court saw fit to substitute ‘good’ for use in a relatively recent ruling!

        • Greg Greenfield

          How do you know this? Sources please.

          Here’s an example. On September 28, 2016, the Supreme Court of Pennsylvania found that:
          Section 3241 of Act 13, which facially permits any private corporation empowered to transport, sell, or store natural gas or manufactured gas in Pennsylvania to seize subsurface lands of a private property owner for the purpose of storing natural gas therein, violates the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution by permitting a taking of private property for a private purpose. Consequently, application and enforcement of this section are hereby enjoined.
          In other words, the General Assembly passed a law which permitted the unconstitutional seizure of private property. The unconstitutional law in question (Act 13) has now been systematically dismantled by the Supreme Court. Good news! You can enjoy your private property without being concerned a Texas oil and gas company like Sunoco will have the ability to take in from you

          • Joe

            I do not remember the case, but I distinctly remember that the UNITED STATES SUPREME COURT substituted ‘good’ for ‘use’ in the 5th! By which it allowed a city to seize land for an industrial park, and the outrage over said decision resulted in an attempt ( which I don’t remember if successful) to seize the property of the then Chief Justice of the Supreme Court! And since that case was essentially identical to this one, I would expect an appeal to the UNITED STATES Supreme Court, where based on the previous case aforementioned, they have a damn good chance of winning. So I wouldn’t crow to soon about this ‘success’. And don’t bother replying if all you’re going to do is demand ‘sources’! I remember the case, and if you won’t accept that, I suggest you wait and see what happens!

          • Greg Greenfield

            Of course. After Kelo (in which the Supreme Court ruled on a taking of property under the laws of Connecticut) about half the states in the union changed their laws to prohibit exactly the kind of taking in Kelo.
            The Supreme Court of Pennsylvania recently ruled that the taking of private property by oil and gas companies in order to construct underground gas storage tanks is unconstitutional under the Constitution of Pennsylvania. Please keep in mind that if that case (Robinson IV) is appealed to the Supreme Court, and if the Supreme Court decided to hear it (unlikely) it would be decided under Pennsylvania law, not Connecticut’s.

          • Joe

            YOU need to keep in mind that once a Federal Court is reached, it is decided under Federal Law or the U.S. Constitution, not State Law, as that is the only way the Federal Court can claim jurisdiction. You also seem to think I agree with Kelo. I DO NOT! But bear in mine, Connecticut’s Constitution also had to have stated ‘use’, like Pennsylvania’s does, or the Senile Nine wouldn’t have had to change the wording of the U.S. Constitution to make their ruling. And if it goes to Federal Appeals court first, the likely hood is that based on Kelo, the oil company will win. And as far as ‘half the States in the Union’, Doubtful! I’m sure EVERY State in the Union restricts Eminent Domain to Public use.

    • Brett Jennings

      Remember judges can make any ruling they want, the real test is the decision made by a jury. Then why after that US Supreme Court ruling, about a developers land grab for a project that never materialized, did PA and a few other states pass new Eminent Domain Laws to prevent that abuse by the Supreme Court. With Gathering pipelines there are a defined and exclusive set of people or companies that would benefit by the movement of products. They are the Royalty owners and investor for the pipeline. Now the other two types of pipelines interstate and local distribution have other considerations. Local distribution is for the public good, where the interstate has other issues. Is it going to a port, crossing international boundaries or to a processing location to create different goods. Say a pipeline is providing for export or manufacturing, then that profit should be shared by the property owners where eminent domain or it’s threat is used. Why, those are not for the public good, but piggy back on the Eminent domain power.

      • Joe

        WHAT jury can overturn a Supreme Court ruling? State or U.S.?
        NONE!

        • Brett Jennings

          Any Jury can overturn a state or federal court. It’s called Jury nullification a simple principal. A jury can say a law or president is wrong. The Kellow case had no Jury decision and a judge is to be separate from the Jury in an Article III Court, which is a court of record. Any court of record moves under the Common Law, not the Court rules. Hell just backing eminent domain for something like this would make me violate my oath of office.

          • Joe

            You are suffering from some misconception. Juries do NOT ‘overturn’ anything! They ‘make’ the decision! And Appeals Courts DO NOT USE ‘juries’!
            And Jury Nullification is when a Jury makes a Not Guilty verdict in a criminal case where the evidence of guilt is overwhelming, thus preventing a retrial thanks to the prohibition of Double Jeopardy. Jury Nullification does not arise in Civil Suits! Furthermore, Courts, ALL Courts act under STATUTE Law, NOT Common Law! Common Law is only resorted to in the ABSENCE of an applicable WRITTEN Statute!
            And also for your information, in Civil Suits judges can and do routinely overrule Jury decisions both on appeal and at the original trial.

          • Brett Jennings

            Obviously you have do not know the history on how courts have operated. Statute Law is base on contract, so no contract no law. Common law is always there and over rides any statues. Too bad that most people that were taught this are dead or will be within a few years. Civil Suits or a suit over rights that were given, what a misconception. Rights are inherent not given, other than to slaves that were freed.

          • Joe

            Can you really be that stupid!?
            Statute, as in WRITTEN law, overrides Common Law EVERY TIME! Common Law only existed BEFORE written codes became the norm! And only apply if the WRITTEN law is silent on the subject in question! Where there are examples of Common law coexisting along Statute law, such as common law marriage, the written law takes precedence when any conflict arises. And if you had ‘any’ intelligence, you would see that your preposterous claim would render the vast VAST “VAST” libraries of Law books meaningless!

          • Brett Jennings

            It also validate many of the older law books. Remember when laws conflict with what is common to the people the common law prevails. That is what a jury is for. The common law has been the corner stone of liberty, even against the state for hundreds of years. Be it the crown or other forms of government where common law exists. The big problem with statues is that they are a summary of the laws passed. There are times when you read a law, then read the statues some changes were made. One example of a change is in NY for driver licences. The law passed long ago for requiring drivers have a drivers license issued by the secretary of state and what the codified statues say. There is no problem with written laws as long as they do not conflict with my liberties, franchises or immunities. Here is a question, can a Lawyer speak in a court of record? Remember to be recorded in court, you have to be under oath. Common law is most simply express as what is in the hearts of the people. Written laws can be changed, but the common law or laws common to the people do not. How long ago were the 10 commandments written down, and are they still relevant?

          • Joe

            Common Law DOES NOT prevail! When a law, any law is passed, ALL previous laws INCLUDING Common Law become mute!
            And by rights, the Ten Commandments CANNOT be used as a basis for any of our laws unless it can be shown the the ‘Commandment’ in question has a universal application. And just fyi, the Ten Commandments constitute STATUARY Law, NOT Common, as they are WRITTEN!

      • Bea Freer

        Everyone forgets about the landowner. The one whose property is seized, the one who is forced to live 24/7 with a threat in his yard. The landowner is the one who should be paid a transmission fee if they have to endure the risks while the pipeline company is reaping all the benefits and profits.

  • TexasRick8444

    I presume these folks would be against the use of eminent domain for roads, and utility projects like power, water and communications? They want the modern lifestyle but not the infrastructure that makes it possible. Sorry, but they two go hand in hand.

    • Cobbtown

      You don’t seem to understand the difference between public and private.

      • TexasRick8444

        Without eminent domain authority none of these projects get built because you will never achieve 100% buy-in from landowners on a 1,500-mile pipeline.

        • Bea Freer

          Gee, and it would be so awful that they would have to share a line and pay to use it, rather than rob landowners.

        • Bea Freer

          Being you are from “Texas” says it all. So, you go sign up and have the pipeline built in your yard. I’m sure you’ll be happy with it.

    • Greg Greenfield

      TexasRick, you never answered my question about whether I can have some of your property. I need it to build a spent nuclear fuel processing plant outside your kitchen window. My plants never leak hazardous materials. Well OK, they do sometimes, but it’s all for your benefit since you use electricity. Anyway, I presume you’re good with this and I have some papers for you to sign.

      • Bea Freer

        Or you will seize his property via eminent domain. You forgot that part. But, of course, that won’t be until you’ve tortured him for about 3 years and watched him beg for mercy, for his property, for his retirement years, for his health…and safety of his family and community.

    • Bea Freer

      Your presumptions are wrong. There are better ways and places for infrastructure without stealing from private taxpayers. Apparently, you are too arrogant and pig-headed to see it. Oh, that’s right. You’re from George Bush Country who stole more rights from Americans with his shady pal, Dick Cheyney. They should be hung for what they’ve done to Americans and this country. They are the poster boys for EVIL.

      • TexasRick8444

        Goodness, Bea. Simmer down you’re going to pop a gasket. I must have really struck a nerve. All I can say is I bet you are very grateful for all these pipelines that provide you with fuel for transportation and raw materials to build computers aND cell phones that allow you to hurl your insults at me.

  • TexasRick8444

    So unless the products are actually used by or benefit the communities through which they pass, there’s no need for them? Hell, then let’s just shut down all interstate truck traffic carrying goods to other parts of the country. And if you don’t think you use butanes or ethane, that shows how ignorant and myopic you are about this issue. If you use a computer or cell phone, drive a car, live in a home or apartment or participate or use any other product produced from petrochemicals, then you definitely have a stake in development of natural gas and associated liquids. You hypocrites wouldn’t last a week without the products supplied by pipelines.

    • Cobbtown

      We use those things, Rick, and we pay for them and the companies that sell them and the raw materials make a profit. That is their good, not ours. Eminent domain should be only for public good and public infrastructure, not private, profit-making infrastructure.

    • Bea Freer

      And while you are busy being closed minded to the people who actually care about each other, their communities and environment, then “you” need to sign up and have the pipeline rammed through your property. We DON”T need this many pipelines in America. We DON’T need to steal people’s land to be energy independent. We DO need to stop being so lazy and greedy, and find more creative and fair ways to transport the energy. I’m sure you would be really happy to have to live 24/7 with a ticking bomb in your yard, and still have to pay taxes on land you cannot use. Then go sign up Mr. Heehaw, or better yet go back to that arrogant state of Texas and take all your drilling rigs and pipelines with you.

  • R. Saunders

    The next issue that needs to be answered is whether the eminent domain provisions of Pennsylvania’s Business Corporation Law deny Equal Protection of fundamental property rights when a pipeline company exercises the power of eminent domain. The enabling statute, 15 Pa.C.S. sec. 1511(c), requires a hearing at which a utility must prove, among other things, that it is taking property for a public use. This process is property specific and a property owner has an opportunity to participate in the hearing and appeal an adverse decision. However, the procedure only applies to utilities installing poles or wires, which are rather benign. It does not apply to nor protect property owners where eminent domain is exercised for a pipeline carrying natural gas liquids or other hazardous materials.

    • Greg Greenfield

      An interesting theory. Fortunately for our American values, Pennsylvania higher courts do not appear to agree with you.

  • MreMan

    Your land is not your land. Keep that in mind. It can taken from you at will unless the law is overturned

    • Greg Greenfield

      Your land is your land. Your ability to defend it from being taken at will for private use is guaranteed to you by the Constitutions of Pennsylvania and the United States. Laws that are unconstitutional (Pennsylvania’s Act 13 comes to mind) are subject to being overturned by the Supreme Court of Pennsylvania and the United States.

      • Bea Freer

        Let’s pray Act 13 is overturned ASAP. Interesting that it should be Act “13.” NO surprise it’s been so bad for landowners, communities and the environment.

  • Drahcir Yekcor

    So many people sucking that big oil dick.

  • Bea Freer

    How convenient that the law has not been written to protect “the public.” Isn’t that who legislators were suppose to be working for?

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