Pennsylvania landowners who have been fighting with Sunoco over the Mariner East 2 pipeline project have so far been unsuccessful in their attempts to bar the energy giant from using their land for the natural gas pipeline. Over the past year, they have seen a handful of unfavorable decisions from the Commonwealth Court, but with cases potentially on their way to the state Supreme Court and a recent pronouncement on environmental law by the justices, plaintiffs are hoping the litigation won’t be over so quickly.
Earlier this month, the Commonwealth Court rejected Glen Mills attorney Charles Katz’s challenge to Sunoco’s eminent domain action, specifically ruling that the Pennsylvania Utility Commission’s determination that a project is for a “public need” does not need to take into account the need to take each specific parcel.
The ruling came little more than a month after the court rejected another challenge to the project, this one brought by Rolfe and Doris Blume, who challenged, among other things, the sufficiency of the bond Sunoco posted for the taking. And less than two weeks before that ruling, the Commonwealth Court rejected another challenge, this time involving arguments about the Supreme Court’s latest ruling on Act 13. That challenge was brought by landowners Stephen and Ellen Gerhart.
Despite the losses, the Gerharts’ attorney, Richard Raiders, said he is still hopeful the high-profile eminent domain litigation won’t be over any time soon.
Landowners in a handful of cases are asking the Supreme Court to take up their challenges on appeal, and Raiders has also asked the Commonwealth Court to allow for additional briefing in the last remaining challenge pending before the intermediate court. In that challenge, the Andover Homeowners’ Association asked the court to address the significance of the Supreme Court’s June 20 ruling in Pennsylvania Environmental Defense Foundation v. Commonwealth.
“I think that there’s already seven or eight cases teed up to go to the Supreme Court,” Raiders said. “If the Supreme Court sees all this stuff coming in on the same matter [they might] decide to hear this case.”
Central to many of the challenges is the argument that landowners should be able to challenge on appeal the PUC’s findings underpinning its decision to issue a “certificate of public convenience” for a project. Those considerations include findings about whether a project is a public utility and that the project is for a public purpose.
However, arguments that courts should be able to review on appeal those foundational findings by the PUC were dismissed by the Commonwealth Court last year in a challenge brought by R. Scott and Pamela Martin.
In that decision, an en banc Commonwealth Court panel determined that the Mariner East 2 pipeline is a public utility service with the ability to condemn property under eminent domain. In December, the Supreme Court denied the appeal in that case, so arguments related to the overall project are largely foreclosed.
Raiders noted that three Commonwealth Court judges have repeatedly expressed dissent to the Martin decision, and said the current strategy for the landowners is to “work around the edges of what Martin did or didn’t say.”
Among other things, that includes arguments that the Supreme Court’s 2016 decision in Robinson Township v. Commonwealth, referred to as Robinson Township IV, and the Pennsylvania Environmental Defense Foundation decision impact the issues underlying Martin.
The Pennsylvania Environmental Defense Foundation decision held that state parks and forests—and the oil and gas minerals underneath—are part of the state’s “public trust,” and therefore the state must “conserve and maintain them for the benefit of all the people” pursuant to Article I, Section 27 of the Pennsylvania Constitution.
Hershey attorney Michael Faherty, who represented both the Martins and the Blumes, said he is pointing to that decision in the three cases he has asked the Supreme Court to take up on appeal.
“We are hoping the Supreme Court looks at the requirement for eminent domain for use by a public utility or any government to have service of the public being the primary purpose for the project,” he said. “The public needs to be the primary beneficiary of the project.”
Raiders said he is also pushing to have the courts consider the amount of public demand when it comes to each taking.
“The excessive taking question could be very interesting,” Raiders said. “I’m very interested in making sure that we have a good definition for how much you can take.”
Sunoco is being represented by Robert Byer of Duane Morris. Byer declined to comment for the story. A spokesman for Sunoco did not return a message seeking comment.
Northeast Pennsylvania energy lawyer Stephen Saunders, who is not involved in the Mariner East 2 litigation, said the case law coming out of the litigation has solidified the issues that courts can review after the PUC makes a determination about a condemnation, including whether a company is a public utility and whether a project is for a public benefit.
Given the recent turnover on the Supreme Court, Saunders said it is possible the justices may take up the challenges. But as it stands, the cases have confirmed that courts are limited to reviewing only whether a particular condemnation is outside the scope of the public necessity.
“They provide some clarity [about] the limited scope of the court’s power,” Saunders said. “This really shows why you have to get involved early on. If you don’t get involved when matters are at the PUC, or in front of [Federal Energy Regulatory Commission], you really are fighting a very difficult battle.”