PUC’s West Goshen ruling cheers advocates for local control over pipelines

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.

October 27, 2017 | 3:20 PM

Mariner East 2 pipeline construction in Aston, Delaware County. Construction includes underground drilling along parts of the route. In Chester County, Sunoco's crews punctured an aquifer, leading to some residents having to drink bottled water and shower at hotels.

Emily Cohen / StateImpact PA

Mariner East 2 pipeline construction in Aston, Delaware County. Construction includes underground drilling along parts of the route. The Public Utility Commission has blocked Sunoco from constructing a valve station in West Goshen.

Pennsylvania’s Public Utility Commission halted Sunoco’s plans to build a valve for its Mariner East 2 pipeline in Chester County’s West Goshen Township, raising questions about whether the massive cross-state project will be completed on time, and encouraging advocates for local control over gas development.

The commission voted unanimously on Thursday to uphold a judge’s ruling that prevented Sunoco from building the valve and associated equipment on private land on the basis that the construction breached a settlement agreement between the township and the company.

The commissioners backed Administrative Law Judge Elizabeth Barnes who ruled in July that the township had met the legal requirements for being granted emergency relief from the court. Sunoco must now drop its plans for building the valve until the PUC holds a full hearing on the case next April.

David Brooman, an attorney for the township, said the PUC’s 35-page ruling meticulously considered all of the facts presented to Judge Barnes, and the legal arguments used by Sunoco.

“Sunoco Logistics flagrantly breached its Settlement Agreement with the Township, and the full Commission now has remedied that breach,” Brooman said.

He said the agreement was intended to confine Sunoco’s Mariner East 2 operations to one specific piece of property – a pumping station for the existing Mariner East 1 line – to minimize environmental and visual impacts, as well as to protect the public from transporting highly volatile natural gas liquids.

He said the company could resolve the dispute simply by building the valve where specified by the agreement, rather than on a parcel of private land where the facility is now planned.

“It is time that they redesign that segment of the pipeline to the specifications detailed in the Settlement Agreement,” Brooman said.

“The Township will continue to pursue any and all legal actions necessary to force Sunoco Logistics to honor its promises and commitments,” Brooman said.

Sunoco spokesman Jeff Shields did not respond to questions on whether the company might build the valve elsewhere, and whether the whole pipeline project would be delayed by the PUC’s ruling, saying only: “We look forward to working toward a resolution to this matter as construction continues across Pennsylvania.”

The PUC said it had been asked to determine whether Judge Barnes acted properly in granting emergency relief to West Goshen by ordering Sunoco not to build the valve on the disputed site and not to conduct horizontal directional drilling related to the valve.

“We determine that the Township has met the requirements for obtaining interim emergency relief,” the commission wrote, echoing Judge Barnes’s ruling. It agreed that the township had shown that its right to relief is clear; that the need for relief is immediate; that the injury would be irreparable if it were not granted, and that the relief would not hurt the public interest.

The Barnes ruling was the first judicial obstacle to the controversial pipeline project, which is scheduled for completion by the end of 2017 but whose progress has been impeded by a series of legal, technical and community challenges.

In July, another judge ordered a temporary halt to drilling on the line after dozens of spills of drilling fluid and some contamination of private water wells after aquifers were punctured.

Now, Sunoco is barred from building the valve at near the intersection of Boot Road and Route 202 in the township at least until the PUC hears West Goshen’s full case alleging that the company violated the 2015 agreement.

The pipeline, costing more than $2.5 billion, will carry propane, ethane and butane some 350 miles from the Marcellus Shale of southwest Pennsylvania to an export terminal at Marcus Hook near Philadelphia. Sunoco says the project will create jobs and help to bring the state’s massive gas reserves to market.

But the company’s use of eminent domain to obtain land from uncooperative residents, and claims that the highly pressurized natural gas liquids could endanger public safety have antagonized some communities along the line.

The PUC’s ruling could encourage those communities to assert control over the siting of pipelines like Mariner East 2 whose location is not regulated by either federal or state government, said Jordan Yeager, an attorney who won the landmark Robinson case in the Pennsylvania Supreme Court, which established local rights over gas development in 2013.

Yeager said the PUC’s language in its new ruling shows it recognizes there are limits to its own power to exempt pipelines from local regulations even if they have been, as in the case of Mariner East 2, designated as public utility projects.

Even though the PUC is authorized under the state’s Municipal Planning Code to determine whether to exempt a proposed public utility building from local regulations, “it is not clear that the commission has the authority to provide such an exemption in the context of the instant proceeding,” the ruling said.

That may give municipalities like West Goshen more power over where pipelines are built, Yeager said.

“They acknowledge that it’s not clear that, even if they wanted to, they could exempt Sunoco from local control for these facilities,” Yeager said, referring to the PUC. “That’s a very important acknowledgement by the Public Utility Commission.”

He said the PUC’s ruling runs contrary to Sunoco’s argument in a separate case brought by a group of West Goshen residents in the Commonwealth Court last week over whether the township must enforce its own zoning ordinances when faced with pipeline development.

Rich Raiders, an attorney who represents many residents who are fighting eminent domain cases over Mariner East 2, said municipalities should be encouraged by the ruling to assert control over pipeline siting.

“It’s no longer a total waste of their time to try to protect themselves,” Raiders said. “If you are a municipality weighing what to do about a situation like this, you know at least at some level that if you do have to take this to the PUC that somebody is at least is going to listen to you.

“This is the first time the PUC ever said anything about whether local people have any say in the matter,” he said.

But the case is far from settled because whoever loses before the PUC next year is likely to appeal to the Commonwealth Court, Raiders said.

Lynda Farrell, executive director of the Pipeline Safety Coalition, said the PUC’s ruling should prompt all townships where Mariner East 2 is being built to examine their agreements with Sunoco and ensure compliance.

“Every community member who’s been paying attention to this project should ask their township officials to make that agreement available to them without requiring expensive right-to-know requests,” she said.