Sunoco wins eminent domain challenge to Mariner East 2

The Pennsylvania Commonwealth Court has ordered a Philadelphia trial court to enter summary judgment in favor of Sunoco over eminent domain challenges related to the Mariner East pipeline project.

The order effectively eliminates nearly all claims made by plaintiffs Margaret M. deMarteleire and Michael S. Bomstein in their 2015 complaint, but does allow a single claim alleging violations of the Environmental Rights Amendment to remain under the jurisdiction of the Commonwealth Court.

The Mariner East 1 project is completed and a second pipeline, Mariner East 2, is underway. Mariner East 2, a 351-mile pipeline, would bring natural gas liquids including propane, ethane and butane from Marcellus shale areas in Pennsylvania and neighboring states to the Marcus Hook Industrial Complex for refining and sale.

About 11.4 miles of pipeline is being routed through private and public property in Thornbury, Edgmont, Middletown, Aston and Upper Chichester. Sunoco has faced multiple challenges to the project from residents across the state, including some living in those municipalities.

The plaintiffs in this case, both of Media, filed a complaint alleging seven substantive claims in the Philadelphia Court of Common Pleas and one claim for injunctive relief.

The first two counts challenged Sunoco’s right to exercise eminent domain in the state because it is not a “public utility” regulated by the Public utility Commission, but the Commonwealth Court noted it has already settled that issue in a separate case.

Counts three and four sought a judicial declaration that Sunoco’s condemnations to construct the Mariner East Project violated property rights under the Takings Clause of the Fifth Amendment to the United States Constitution and as well as a section of the Pennsylvania Constitution because it amounted to a “private taking” for a “private purpose.”

The plaintiffs also raised a procedural due process challenge in counts five and six, arguing they were not advised of any PUC authorizations granted to Sunoco to construct the pipelines and that they would have appeared before the PUC to oppose any such authorizations had they been notified.

The trial court denied Sunoco’s motion for summary judgment in May 2017 before seeking appellate review from the Commonwealth Court on questions of jurisdiction and standing.

While the Commonwealth Court found the plaintiffs do have standing to bring their claims, it held that the issues raised by the first six counts lie outside the subject matter jurisdiction of the trial court due to the Eminent Domain Code, which provides for the “exclusive procedure” regarding condemnations of private property for public purposes.

The code requires that challenges to eminent domain procedures be made in the court of common pleas where the property is located after the condemner has filed a declaration of taking.

These parameters were not met for the first two counts and the court found that the other four counts all challenged the “power and right” of Sunoco to condemn land by eminent domain, which is exclusively governed by the Eminent Domain Code.

The order remanded the case to the trial court with instructions to enter summary judgment on counts one through six in favor of Sunoco.

The Commonwealth Court also directed the trial court to transfer jurisdiction on the seventh claim, however, in which the plaintiffs contend that Sunoco has fiduciary duties to consider the impact its construction would have on the state’s public natural resources as a trustee under the Environmental Rights Amendment.

The Environmental Rights Amendment limits the power of “the state” to act in derogation of protected environmental interests and obligates “the Commonwealth” to act to act as a trustee of Pennsylvania’s public natural resources, according to the order.

Because the plaintiffs contend that Sunoco is acting as “the commonwealth” in exercising eminent domain and the Commonwealth Court has exclusive jurisdiction over all civil actions or proceedings “against the commonwealth government,” the order directed the trial court to transfer that claim.