Pipeline Update: Pennsylvania Commonwealth Court Allows Environmental Rights Amendment Challenge to Sunoco Pipeline’s Mariner East Project to Proceed

Frank L. Tamulonis III and Stephen C. Zumbrun

The Pennsylvania Commonwealth Court recently ruled that a challenge to Sunoco Pipeline L.P.’s (“Sunoco”) Mariner East Project under Article 1, Section 27 of the Pennsylvania Constitution (the “Environmental Rights Amendment” or “ERA”) may proceed. In Clean Air Council, et al. v. Sunoco Pipeline L.P., Docket No. 112 C.D. 2017 (Opinion issued April 30, 2018), the Court reversed, in part, the trial court’s denial of Sunoco’s motion for summary judgment, ordering an entry of summary judgment for Sunoco on all counts except for Plaintiffs’ claims brought under the ERA.

The case involves a challenge by Clean Air Council (“CAC”) and other individuals to Sunoco’s Mariner East Project, a pipeline construction project designed to transport natural gas liquids across Pennsylvania from the Marcellus and Utica basins to Marcus Hook in eastern Pennsylvania. Plaintiffs brought a variety of claims challenging Sunoco’s right and power to condemn property including a challenge to Sunoco’s public utility status as well as various constitutional claims, including an ERA claim, takings claims, and procedural due process claims. Plaintiffs are seeking declaratory and injunctive relief that would halt pipeline construction.

In regards to Plaintiffs’ ERA claim, the Court noted that “the ERA does two things: (1) it limits the power of ‘the state’ to act in derogation of protected environmental interests; and (2) it obligates ‘the Commonwealth’ to act as a trustee of Pennsylvania public natural resources.” The ERA, added to the Pennsylvania Constitution in 1971, was of relatively minor significance in the decades after adoption. That all changed with the plurality opinion of Robinson Township v. Commonwealth, 83 A.3d 901 (Pa. 2013) and the subsequent decision of Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3D 911 (Pa. 2017) (“PEDF”). Blank Rome has previously written and presented about the significance of the Robinson and PEDF decisions and the subsequent Environmental Hearing Board (“EHB”) and Commonwealth Court decisions that involve ERA claims. In brief, the PEDF decision revitalized the ERA by holding that “the Commonwealth” has a duty to prohibit degradation, diminution, and depletion of our public natural resources.

The Court framed CAC’s ERA claim as an allegation that “Sunoco, and Sunoco alone, has violated the ERA in choosing to proceed with the project.” Thus, there is a threshold issue of “whether Sunoco is ‘the Commonwealth’ such that it can be sued for violating the duties of the ‘trustee’ under the ERA.” Sunoco contends that Plaintiffs’ ERA claim must fail because (1) Sunoco, a private company with public utility status, is not part of the “Commonwealth Government” and thus has no obligations under the ERA, and (2) it is an unlawful collateral attack on previously issued Public Utility Commission (“PUC”) and/or Department of Environmental Protection (“DEP”) approvals.

The Court ultimately deferred a decision on the issue of whether Sunoco is an instrument of the “Commonwealth Government” within the meaning of the ERA, reserving that issue for a subsequent proceeding before the Commonwealth Court. However, the Court held that Plaintiffs’ claim was not a collateral attack on regulatory approvals, noting that while Sunoco can point to those approvals as a defense to an ERA claim, anticipated defenses do not deprive the trial court of subject matter jurisdiction. The Court remanded the ERA claim to the trial court, but because Plaintiffs allege that Sunoco exercised powers of the Commonwealth Government in its role as a public utility, the Court in essence threw a legal boomerang, instructing that the case be transferred back to the Commonwealth Court pursuant to its original jurisdiction under Section 761(a) of the Judicial Code.

As to the remaining claims, the Commonwealth Court found that each must fail. Those claims—including violations of the taking clause (under the state and federal constitutions), procedural due process claims (under the state and federal constitutions), and challenges to Sunoco’s public utility status—were each, in essence, challenges to Sunoco’s “right or power” to condemn property. The Court held that such challenges must be brought as preliminary objections under the Eminent Domain Code, which is the exclusive procedure for challenging an entity’s condemnation power.

This case now joins numerous other Commonwealth Court decisions rejecting “assault[s]” (as the Court put it) on the Mariner East Project. Nevertheless, by allowing the case to proceed with CAC’s ERA claim, the Commonwealth Court for the first time will have an opportunity to (1) consider whether a private entity acting pursuant to its authority granted by the PUC is an arm of the “Commonwealth Government” and (2) establish a legal standard for analyzing an ERA claim in the context of a challenge to a statewide construction project.

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