Sunoco Logistics rejected an attempt by a Chester County township to block construction of a valve for its Mariner East 2 pipeline, saying the project is a public utility that may not be regulated by municipalities.
West Goshen Township in the western suburbs of Philadelphia wrote to the company last month denying it permission to install the above-ground valve on the grounds that the work would violate a zoning ordinance.
But in a letter released by the township on Thursday, Sunoco (SPLP) said there is “settled law” in Pennsylvania that prevents municipalities applying a zoning ordinance to a public utility project.
The company called the township’s assertion “meritless” and accused it of trying to delay the natural gas liquids pipeline project.
“Any effort by West Goshen Township to apply its zoning ordinance to the valve… appears to be motivated by an improper purpose, specifically, harassing SPLP and causing unnecessary delay to the ME-2 project,” the company said.
It asked the township for an assurance that it would not interfere with its plans to install the valve.
The company argued that the Pennsylvania Supreme Court has held that pre-emption is necessary to prevent local authorities from taking actions that may be contrary to the rights of the Commonwealth as a whole. It cited the court as saying that municipalities are “ill-equipped to comprehend the needs of the public beyond their jurisdiction.”
In December 2013, the court defended local rights to control oil and gas development, striking down parts of the controversial Act 13 that prevented municipalities using zoning ordinances to determine the industry’s activities.
In its letter, Sunoco threatened to take “all legal options to preserve its rights” if the township continues to pursue its claim.Separately, West Goshen has filed a complaint with the Pennsylvania Public Utility Commission, claiming that Sunoco violated a 2015 agreement with the township by failing to install another Mariner East 2 valve, exposing residents to “clear and present danger.”
The municipality also faces the threat of a lawsuit by local resident Tom Casey who says it is failing to enforce an ordinance that requires setbacks between houses and any pipeline.
On Thursday, the township’s outside attorney, David Brooman, issued a statement addressing the PUC complaint, the threatened lawsuit, and the latest letter from Sunoco.
“The Township is vigorously pursuing its action filed against Sunoco Pipeline, LP with the PUC, seeking full compliance with its June 2015 Settlement Agreement,” Brooman said. “The Township has taken both the SPLP response to the Township’s 2/9/2017 letter regarding the applicability of local zoning, and the threatened citizen suit against SPLP, under advisement.”
Following years of legal and regulatory challenges to Mariner East 2, Sunoco began construction after receiving its final permits from the Department of Environmental Protection on Feb. 13.
Last Friday, the company scored another victory when the state’s Environmental Hearing Board denied a second request by three environmental groups for an order that would halt construction of Mariner East 2, pending a full appeal against the DEP permits.
While no written order was available because Judge Bernard Labuskes ruled from the bench, Sunoco spokesman Jeff Shields said the judge rejected the appellants’ arguments on the grounds that they failed to show either the likelihood of success on the merits of their appeal, or that there would be “irreparable harm” from construction of the pipeline .
Shields said the judge also noted that the DEP had adhered to the regulations in issuing permits that enabled the start of construction, and in some cases went beyond regulatory requirements, imposing almost 100 special conditions.
Alex Bomstein, an attorney for the Clean Air Council, which argued the appellants’ case, said the Sunoco statement was a broadly accurate reflection of the judge’s reasoning.
In a separate case, pending before the Philadelphia Court of Common Pleas, Clean Air Council is arguing that Mariner East 2 is not legitimately a public utility project, on the grounds that it is an interstate, not intrastate pipeline.
Mariner East 2, a $2.5 billion project, will carry ethane, propane and butane some 350 miles from the Marcellus Shale of southwest Pennsylvania to a processing and export terminal at Marcus Hook near Philadelphia.