Yesterday at the courthouse… Residents of Middletown and West Goshen townships once again faced off with Sunoco Pipeline LP, this time at the Pennsylvania Commonwealth Court.
It was a hearing of an argument in the case of Middletown residents (the “Middletown Six”) v. Sunoco Pipeline LP on the applicability of municipal zoning to Sunoco’s proposed hazardous, highly volatile liquids pipeline, the Mariner East II.
The Middletown Six filed their complaint after Middletown Council declined to enforce the township’s own ordinance which the plaintiffs allege Sunoco intends to violate. The Middletown Six are represented by Michael Bomstein of Pinnola and Bomstein. Sunoco is represented by Andy Reilly, chair of the Delaware County Republican party, and by attorneys from the firm Duane Morris.
The Middletown Six argument was heard at the same time as that of a similar case brought by the Delaware Riverkeeper Network and affected residents of West Goshen Township, where Sunoco proposes to violate setback provisions the plaintiffs claim are applicable to hazardous liquids pipelines.
The argument was open to the public. In recognition of the significance of these cases, the argument was scheduled to be held “en banc”, or before a full bench of seven appellate judges.
Beginning with a quick rally outside the Courthouse in Philadelphia, we waited for a few hours, and eventually, bore witness to the proceedings. Chris Baker Evens documented our wait. A report from Law360 follows, archived below for those who may get hit with a paywall.
By Dan Packel
Law360, Philadelphia (October 18, 2017, 8:23 PM EDT) — An en banc panel of the Pennsylvania Commonwealth Court on Wednesday expressed skepticism at Sunoco Pipeline LP’s arguments that two municipalities were preempted from imposing any restrictions on the path of natural gas pipelines, in the latest battle over the company’s controversial Mariner East 2 pipeline.
Residents of Middletown Township in Delaware County and West Goshen Township in Chester County have asked the appeals court to reverse two lower court rulings and establish that Sunoco must comply with ordinances that govern pipeline safety.
Judges on the panel expressed concern with Sunoco’s contention that even though the state’s Public Utilities Commission had not issued specific regulations on pipeline routing, it still holds broad authority over the issue.
“You’re saying that a pipeline public utility can put its pipeline wherever it wants to?” Judge Kevin Brobson asked a Sunoco attorney. “Regardless of the density of the municipality, the location of schools … you can put it anywhere?”
Sunoco’s pipeline — which will ultimately cross 17 counties — is intended to ferry butane and propane produced from the Marcellus and Utica shales in Pennsylvania, West Virginia and Ohio to the Marcus Hook Industrial Complex on the Delaware River in southeastern Pennsylvania. It is being challenged in the Philadelphia County Court of Common Pleas and at the Pennsylvania Environmental Hearing Board, and the Commonwealth Court has already ruled in favor of Sunoco in several eminent domain challenges.
In the Chester County suit, the Delaware Riverkeeper Network and two West Goshen property owners say that a 2014 township zoning ordinance prohibits the construction of hazardous gas and liquid pipelines. They say the ordinance also mandates that pipelines that are allowed must receive conditional approval and abide by certain setback requirements.
In the Delaware County suit, six Middletown Township landowners say Sunoco Pipeline’s plans ignore a 56-year-old ordinance that mandates that all gas and oil pipelines must be at least 75 feet from a unit where an individual lives.
Judge Patricia McCullough presented attorney Michael Bomstein of Pinnola & Bomstein, representing Middletown, with Sunoco’s argument that if different municipalities across the state all imposed different ordinances, it would impossible for public utilities to build projects such as intrastate pipelines.
Bomstein responded that he simply wants to Sunoco to be forced to show that it made an effort to comply with the township’s requirements for siting the pipeline.
“There has to be a factual inquiry,” he said. “If Sunoco can prove that it can’t comply with a local ordinance, it should win, but I don’t think Sunoco can do that.”
Both Bomstein and Curtin & Heefner LLP attorney Mark Freed, representing the Delaware Riverkeeper Network, touched on two types of preemption. The two rejected both the idea that the ordinances were expressly preempted by the state’s Public Utility Code and the idea of field preemption, in which pipeline siting is part of the PUC’s domain, even if the agency did not set out any requirements
After Freed made the latter point, Judge Brobson told him, “That’s actually your best argument. No one is looking at the siting of these pipelines.”
The panel, particularly Judge Brobson, kept the pressure on Duane Morris LLP attorney Rob Byer, arguing for Sunoco, after he suggested that the PUC could take steps to control the location of pipelines if the agency were inclined to do so.
“What would be the standard for the PUC to act?” Judge Brobson asked. “What is the challenge the public would lodge?”
He was skeptical of Byer’s response that the PUC could issue ad hoc regulations if pressed.
“There are probably a lot of law firms who would line up to challenge that,” he said.
The judges also seemed sympathetic to Freed’s argument that municipalities’ ability to regulate the location of pipelines stemmed from their “police powers” to intercede on behalf of their residents’ “health, safety and welfare.”
“You’re asking this court to tell the township that its obligation to ensure health, safety and welfare can be supplanted when a public utility wants to bring highly volatile materials into its front lawn?” Judge Patricia McCullough asked.
Byer ultimately suggested that it was out of the courts’ hands
“To the extent people are aggrieved, the remedies are not before the courts, they are before the General Assembly and the PUC.”
The Delaware County plaintiffs are represented by Michael Bomstein of Pinnola & Bomstein.
The Chester County plaintiffs are represented by Jordan Yeager and Mark Freed of Curtin & Heefner LLP, and Aaron Stemplewicz of the Delaware Riverkeeper Network.
Sunoco Pipeline is represented by Rob Byer, Meredith Carpenter and George Kroculick of Duane Morris LLP.
The cases are Meghan Flynn et al. v. Sunoco Pipeline LP, case number 942 CD 2017, and the Delaware Riverkeeper Network et al. v. Sunoco Pipeline LP, case number 952 CD 2017, both in the Commonwealth Court of Pennsylvania.
–Editing by Stephen Berg.