A state appeals court has ruled in favor of the use of eminent domain by Sunoco Logistics Partners on behalf of its Mariner East 2 pipeline, a move that was being fought by Cumberland County property owners whose land is affected.
Commonwealth Court, in a 5-2 ruling on Thursday, affirmed a Sept. 29 ruling by Cumberland County Judge Edward Guido.
At issue was whether the new 350-mile route would fall under the purview of the state’s Public Utilities Commission. If so — as Sunoco argues and as Guido agreed — that gives Sunoco the power of eminent domain, allowing the energy company to take easements or land from private owners, even if they object.
But the line enters the states via West Virginia and Ohio. An attorney representing three couples who own North Middleton Township properties affected by Sunoco’s plans argued that this would make it subject to regulation under the Federal Energy Regulatory Commission, with no right of eminent domain.
A majority of Commonwealth Court disagreed.
“Sunoco is regulated as a public utility by PUC and is a public utility corporation, and Mariner East intrastate service is a public utility service rendered by Sunoco,” Judge Renée Cohn Jubelirer wrote.
Sunoco welcomed the ruling.
“The Court’s decision reaffirms every decision by lower courts across Pennsylvania as to Sunoco Pipeline’s status as a public utility corporation,” the Delaware County-based company said in statement, while also offering an olive branch.
“Although this case confirmed Sunoco Pipeline’s public utility status, we have always worked with landowners to reach mutually acceptable agreements, and pursued legal proceedings only in those instances where an agreement could not be reached,” Sunoco added.
“We believe negotiation is better than litigation, and that landowners receive more favorable terms and compensation as a result of easements that are negotiated rather than litigated.”
The $2.5 billion, 350-mile pipeline project is intended to cross Pennsylvania, from Washington County in the west to Delaware County in the east, traversing the midstate en route.
The company previously has said that there will be 2,500 easements altogether.
According to its website, Mariner East 2 is expected to enter service in the first half of 2017.
Efforts to reach a lawyer representing the landowners were not immediately successful.
Dissenters eye impact on property rights
Judges P. Kevin Brobson and Judge Patricia A. McCullough, in dissenting from the court’s majority, raised questions about the ruling’s potential impact on property rights.
McCullough suggested that Sunoco is looking to “utilize the sovereign power of eminent domain to take condemnee’s property for its exclusively private benefit.”
Brobson wrote that the property owners were “justifiably skeptical,” noting their contention that Mariner East 2 “is now what it always has been — a predominantly, if not exclusively, interstate endeavor, intended to benefit not the Pennsylvanians who require propane to heat their homes, but Sunoco’s customers.” The pipeline will transport fuel from areas outside the state for eventual use by others also outside the state.
McCullough agreed with Brobson, writing that “the majority’s decision, I fear, will gravely undermine” the constitutional right to ownership of private property.