Chesco judge denies request for pipeline work halt
WEST CHESTER » A Chester County Common Pleas Court judge on Thursday denied the county’s request for an injunction against Sunoco Pipeline to halt construction on the controversial Mariner East 2 project on two county-owned properties after deciding he did not have the authority to decide the case.
Judge Edward Griffith issued a terse ruling after an hour-long hearing involving attorneys from the county and the pipeline company, saying that he did not have “subject matter jurisdiction” to rule on the matter. He issued no explanation, but his decision effectively means that work on the pipeline at the Chester County Library and Chester Valley Trail can start tomorrow.
A spokeswomen for Energy Transfers, Sunoco’s parent company, company Vice President Vicki Anderson Granado, hailed the decision and indicated that work would begin soon.
“We are pleased with today’s ruling and remain focused on remobilizing our equipment and crews in this area as part of our overall plan to safely complete this important infrastructure project in line with our recent agreement with the (state Department of Environmental Protection)-related to reviewing and approving our permit applications,” Granado wrote in an email.
The county commissioners, who had filed the request for an emergency injunction last week after being notified by Sunoco that work would commence at their properties on Friday, issued the following statement after Griffith’s ruling.
“The county is disappointed with the court’s ruling and is exploring all legal options that remain available to ensure that Sunoco Pipeline LP adheres to the provisions and terms of the easement that Sunoco drafted,” it read.
If Griffith had ruled in the county’s favor, finding that the dispute is a contract matter that should be settled before construction can begin, then the hearing on its request for a temporary injunction would have continued Friday to determine whether or not the county should get to halt the project while the two sides work out whether the company’s “open-trench” construction technique is justified.
But since the judge essentially accepted Sunoco’s argument that the case involves permitting questions involving the DEP and approvals by the state Public Utilities Commission, neither of which was included in the county’s injunction request. Thus, the county’s attempt to put a stop to the work was flawed and should be rejected.
Sunoco’s attorneys had said that the matter of whether the company had met the terms of an easement over the library and trail properties belonged either in Commonwealth Court — which has jurisdiction over matters involving state agencies — or before the state Environmental Hearing Board.
Lead attorney Robert L. Byer of the Philadelphia law firm of Duane Morris, noted that the DEP and the PUC both had given permission for the pipeline to be built and that the company’s use of the “open-trench” construction method was justified in order to protect the public water supply.
To give a local court like the Common Pleas the ability to decide individual disputes with pipeline constriction project went against case law, Byer argued. Moreover, it would lead to piecemeal approvals of statewide projects.
“This is clearly a case that has statewide impact,” he said in his oral presentation Thursday. If the county’s injunction was granted, “we would have chaos. When public utilities are involved, local courts have “a limited role. This case belongs in Commonwealth Court.”
Louis Kupperman, the attorney from the West Chester law firm of Buckley, Brion, Morris & McGuire, on the other hand, urged Griffith to find that the issue at hand was purely a contract dispute, over which he had authority, between the county and Sunoco involving a provision in the county’s easement that it have a say in what type of construction method is used in the pipeline as it crossed the library and trail property.
“This case has nothing to do with the DEP or the PUC and their previous approvals,” he said. The company failed to meet the terms of the easement that it get permission from the county in advance for the construction method, which was changed in 2017, Kupperman said.
In the hearing, Griffith peppered both sides with questions about the legal case, but also about Sunoco’s need to hasten project construction. The company had been granted permission to resume construction by the DEP earlier this month after it levied a $30 million fine against its parent company, Energy Transfer Inc. of Texas.
“Why do you need to start (the construction) tomorrow? Griffith asked Byer. “What’s the rush?”
Byer answered that the company has obligations that it “is required to meet,” one of which is the promise to the West Whiteland Little League that its ball park adjacent to the library would be ready for play when the season beings. The company has to construct part of the project through that land. (Some sources noted that the company had already agreed to build new ballfields on nearby Boot Road that could be used for the teams’ season).
Mariner East goes 23 miles through the heart of Chester County - including the two county-owned plots — and then another 11 miles through western Delaware County. Eventually, the pipeline will transport hundreds of thousands of barrels of volatile liquid natural gases from the state’s Marcellus Shale region to the former Sunoco refinery in Marcus Hook. It has drawn severe attacks from local governments, environmental activists, and residents in both counties.
The project has been plagued by spills and runoffs, while work has been halted several times by the state. Pennsylvania also has slapped millions in fines against the company, but has been unable to stop the multi-billion dollar project, which has the support of labor groups, the chamber of commerce and some public officials.
More than 80 years ago, Sunoco LP’s predecessors acquired a pipeline right-of-way over privately owned lands in West Whiteland. The county subsequently purchased portions of the land, and in February 2017, Sunoco sought supplemental easements for the properties.
Those supplemental easements required Sunoco to install its pipelines using road bore method or horizontal directional drilling method, which would not disturb the surface of the property, or use the traditional open-trench method should conditions necessitate it, according to the county.
The easements stated that the open-trench method of construction may not proceed unless Sunoco provided substantial evidence to the county that conditions beyond Sunoco’s reasonable control necessitate the use of the open-trench method, or that Sunoco received written permission from the county, according to the commissioners’ motion.
However, the company has responded that the county’s suit cannot proceed because it does not list as parties to the action either the DEP, which issued approval of the construction permits initially and again this month, and the PUC, which certified the pipeline project as a public service. Those are the agencies that granted approval for the type of construction, and the county cannot counter their decisions, the company attorneys wrote.
“The county’s petition flatly ignores that the permanent easements specifically contemplate the use of the ‘open-trench’ method,” the company’s motion to dismiss the petition for an injunction stated. “They do not require the county’s written consent to the change.”