Sunoco scores two wins against pipeline lawsuits
MEDIA COURTHOUSE » A Delaware County Common Pleas Court judge has dismissed a lawsuit filed by six residents who oppose the Mariner East 2 pipeline, days after a Chester County Court of Common Pleas judge did the same.
On Monday, Delaware County Common Pleas Judge Charles B. Burr III dismissed the case in his court after agreeing with Sunoco Pipeline on all issues save for a challenge on lack of standing.
The case in Chester County was similar. There, on June 15, Chester County Common Pleas Court Judge Mark L. Tunnell overruled Sunoco’s claim of a lack of standing, sustained an objection to lack of subject matter jurisdiction and authority to regulate, as well as an allegation that the substantive due process hadn’t been followed. Tunnell sustained as moot one allegation regarding lack of authority.
Sunoco Pipeline spokesman Jeffrey Shields issued a statement for the company.
“The dismissal of two lawsuits in Delaware and Chester counties, cases which were intended to delay the Mariner East 2 pipeline project, was consistent with the law,” it read. “Every Pennsylvania court that has weighed in on the subject has found that Sunoco Pipeline is a public utility providing a service that benefits Pennsylvanians, and therefore is regulated by the state Public Utility Commission. As such, local efforts to regulate public utility facilities that are not buildings are preempted, under legal authority that spans many decades in Pennsylvania.”
The statement ended, “Thousands of Pennsylvanians are hard at work right now, safely building a multibillion-dollar infrastructure project that will create hundreds of permanent, familysustaining jobs and will offer economic development opportunities across the state for years to come.”
Previously, Sunoco officials had said there were 2,200 construction jobs at the Marcus Hook Industrial Complex alone with more than 200 full-time permanent jobs slated to be at the facility with a total annual payroll of $16 million.
And, an American Petroleum Institute analysis released Tuesday said 178,100 jobs in Pennsylvania, or 3.1 percent of all jobs in the state, are linked to the natural gas industry. API officials also said the industry’s contribution to Pennsylvania’s economy in 2015 was $24.5 billion.
Michael Bomstein, representing the group of Middletown residents who filed the suit, said his clients would likely appeal the order to a higher state court but would need to have a discussion about their next course of action first.
Regarding the Delaware County decision, he said, “Obviously, we are very disappointed. This is not the first case where Judge Burr has ruled for Sunoco.”
Bomstein said Burr’s decision was not entirely unexpected as the judge had ruled in Sunoco’s favor in various eminent domain cases in his court as well.
Burr offered no opinion in issuing his order on Monday. However, Tunnel did when he issued his earlier this month.
In a suit filed by two West Goshen residents, Tunnel determined, “The court ... has found that Sunoco has not violated or failed to comply with a zoning ordinance to which its activity is subject. Thus, plaintiffs’ due process claim fails.”
Tunnel also outlined that the plaintiffs in this case had a right to bring this case before the court.
However, he cited other cases labeling Sunoco Pipeline a public utility and saying the case is under the purview of the Public Utility Commission.
“In numerous cases preceding the present one, the Pennsylvania appellate courts have confirmed what Sunoco now argues to this court: Sunoco is a public utility for the purposes of the (Mariner East) project,” Tunnell wrote.
The judge also cited a 1975 case involving the Lehigh Valley Railroad constructing a diagonal cross-over track in Dupont Borough. In this case, the
the Commonwealth Court determined that Dupont Borough “lacked the authority to require a building permit.”
And, that was due to a prior Pennsylvania Supreme Court decision three years earlier in
determined “that public utilities are to be regulated exclusively by an agency of the Commonwealth with statewide jurisdiction rather than by a myriad of local governments with different regulations.”
Regarding the Sunoco lawsuit, Tunnel said, “The regulation at issue here falls within the purview of the PUC and not this court.”
Finally, the Chester County judge also wrote that structures erected by public utilities are not subject to municipalities’ zoning codes.
Referring of to a 1986 case
the Commonwealth Court listened to the township’s assertion that PECO that the Municipal Planning Code gave the township authority to zone a siren proposed by PECO.
That court disagreed, ruling, “there is no power possessed by municipalities to zone with respect to utility structures other than buildings.”
In the current day case, Tunnel added, “Both parties agree the proposed (Mariner East 2) pipeline is not a building ... The court’s inquiry thus stops here.”
The first phase of Mariner East began in December 2014 when 70,000 barrels of ethane and propane came from western Pennsylvania’s Marcellus Shale to Marcus Hook. Mariner East 2 will have 250,000 barrels a day of butane, propane and ethane being piped to Delaware County for local, national and international distribution.