The Mariner East Pipeline Project consists of two phases, the first of which is commonly referred to as Mariner East 1. The second phase of the project, known as Mariner East 2, consists of two new pipelines, to be constructed adjacent to Mariner East 1, sharing much of the same right-of-way. In order to launch the project, Sunoco was required to obtain government authorization in various forms – including permits, zoning approvals, easements, and CPCs for the project and the corporation was often challenged at each phase along the way. In order to obtain the right to construct the pipeline across private land, Sunoco often acquired easements by filing declarations of taking under the Code.Sunoco based its eminent domain authority on the CPCs it obtained from the Commission, the validity of which has never been properly analyzed.
In the case In Re Sunoco, landowners in Cumberland County refused Sunoco access to their property. As a result, Sunoco filed declarations of takings in the Court of Common Pleas and in response, landowners filed preliminary objections to the declarations of taking. The Court of Common Pleas overruled the preliminary objections and, on appeal, Commonwealth Court affirmed, holding, among other things, that Sunoco was a public utility corporation empowered with the authority to exercise eminent domain. The court also found that there was no basis for the Court of Common Pleas to review the Commission’s determination of public need for the Mariner East 2 pipeline, because the Eminent Domain Code provides the exclusive method for challenging the Commission’s issuance of a CPC. Due to procedural flaws relating to jurisdiction, estoppel, and waiver that occurred in the In Re Sunococase, the court never fully analyzed the validity of Sunoco’s CPCs.
The Commonwealth Court’s failure affected numerous cases that followed which relied on In Re Sunoco as determinative on the issue of Sunoco’s eminent domain authority for the Mariner East Project. However, in ruling on the matter, the Court failed to follow recent Pennsylvania Supreme Court precedent related the Pennsylvania Public Utility Commission’s (PUC) obligations under the Environmental Rights Amendment by considering whether the PUC, in advance of proceeding, considered the environmental effect of any proposed action on the constitutionally protected features.”Throughout the Sunoco litigation, the court also failed to determine whether the public was the primary and paramount beneficiaryof the eminent domain takings. Unfortunately, the Pennsylvania Supreme Court has declined to recognize these serious violations of the Environmental Rights Amendment by denying the relevant petitions for allowance of appeals related to the Mariner East project.
Case References
In re Condemnation by Sunoco Pipeline, L.P. of Martin, Fitzgerald, and Nickey (In Re Sunoco), 143 A.3d 100 (Pa. Cmmw. Ct. 2016).
Sunoco Pipeline, L.P. v. Loper, No. 2013-SU-4518-05. Pa. D. & C. (Pa. York Ct.).
Pennsylvania Environmental Defense Found. v. Commonwealth, 161 A.3d 911 (Pa. 2017).
Robinson Twp., Washington County v. Commonwealth(Robinson Twp. I), 83 A.3d 901 (Pa. 2013)
Robinson Township v. Commonwealth(Robinson Twp. III), 147 A.3d 536 (Pa. 2016)