Judge rules that environmental group can challenge Sunoco over pipeline eminent domain

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.

May 26, 2017 | 8:36 AM

Susan Phillips / StateImpact PA

Huntingdon County landowner Ellen Gerhart (L) at her property with her daughter Elise Gerhart. The Gerharts lost an appeal against Sunoco Logistics' use of eminent domain on their land, but the company will now have to defend its policy in a Philadelphia court, the court ruled on Thursday.

Sunoco Logistics’ use of eminent domain to take private land to build its Mariner East 2 pipeline came into question again on Thursday when a Philadelphia court ruled that an environmental group can argue that the practice is unconstitutional.

Judge Linda Carpenter of the Philadelphia Court of Common Pleas denied the company’s request to summarily dismiss a complaint by the Clean Air Council, clearing the way for a trial, possibly at the end of this year.

The Clean Air Council argues that Sunoco has no right to take land via eminent domain because the pipeline is carrying natural gas liquids across state lines and is therefore an interstate, not intrastate, pipeline. If Mariner East 2 is deemed an interstate pipeline, it is not entitled to a “certificate of public convenience” from the Pennsylvania Public Utility Commission, the environmental group argues. That certificate is needed to assert eminent domain to take the land of uncooperative landowners.

The ruling follows two other recent decisions from the Commonwealth Court, which ruled in favor of the company in its disputes with individual landowners.

On Wednesday, the court rejected an appeal of a lower court ruling in Lebanon County. That judge had sided against Homes for America, a property developer of low-income housing, in its argument against eminent domain.

On May 15, the Commonwealth Court ruled against Stephen and Ellen Gerhart of Huntington County, who have been fighting Sunoco’s plans to build the natural gas liquids pipeline across their land, and argued that the company had no right to use eminent domain because the pipeline is not in the public interest.

Once complete, the 350-mile Mariner East 2 pipeline will carry ethane, propane and butane from the Marcellus Shale of southwest Pennsylvania to a terminal at Marcus Hook in Delaware County, near Philadelphia. Most of the fuel will be exported. Sunoco began construction in February after getting its final permits from the Department of Environmental Protection, but the project continues to be fought by some communities, especially in densely populated Philadelphia suburbs, where opponents argue it poses a risk to public safety.

In its ruling on Thursday, the Philadelphia court said that neither of the Commonwealth Court rulings addressed the constitutional issues that have been raised by Clean Air Council.

“Because these prior cases stemmed from condemnation proceedings governed by the Eminent Domain Code, there was no available avenue to raise a constitutional challenge,” the judge wrote in an 11-page opinion.

The judge also said that the PUC, which issues the certificates of public convenience on which eminent domain depends, is “not the proper adjudicating body” for a constitutional claim.

Clean Air Council argues that Sunoco’s use of eminent domain violates the U.S. and Pennsylvania constitutions because it is taking land for private rather than public purposes; that it violates the Pennsylvania constitution’s Environmental Rights Amendment, and that it violates due process under both the state and federal constitutions.

Jeff Shields, a spokesman for Sunoco, said the company would have no comment on the latest ruling because the matter is in litigation.

Alex Bomstein, an attorney for Clean Air Council, said the latest ruling shows that the fight over Sunoco’s right to use eminent domain is not over despite the company’s argument that it has been vindicated by the Commonwealth Court.

“This ruling showed that the Commonwealth Court only showed that in certain cases,” Bomstein said. “In fact, there are legitimate, important, constitutional issues that have yet to be decided that bear on whether Sunoco ultimately does have the right to use eminent domain for Mariner East.”

Bomstein said the trial might take place in December.

John Dernbach, a professor of environmental law at Widener University, said the significance of the latest ruling will depend on what the trial court decides about Clean Air Council’s constitutional claims.

“All the court decided was that some of the Clean Air Council’s issues get to go to a hearing,” Dernbach said. “The significance of the case will depend on what the court decides after a hearing. If a court decides that there are constitutional problems with the land condemnations, that would be significant.”