Jim Willis

Editor & Publisher, Marcellus Drilling News (MDN)



The Clean Air Council attacked Mariner East land condemnations as a way to frustrate pipeline development, but Pennsylvania Supreme Court just nixed it all.

One of the ways anti-fossil fuel groups have tried to stop the Mariner East 2 Pipeline project is by tying it up in court. Various lawsuits have been filed going back years. One litigant, a Big Green group headquartered in Philadelphia, the so-called Clean Air Council, has tried repeatedly to get the courts to deny Mariner East 2 the right to use eminent domain in cases where landowners refuse to cooperate. The Clean Air Council argued Mariner East 2 is not a “public utility” and, therefore, not entitled to the use of eminent domain. That argument flamed out.

Pennsylvania’s Commonwealth Court ruled, in May, that, yes,Mariner East 2 is a public utility entitled to use eminent domain if it needs to do so. The Clean Air Council had one last card to play, taking the case to the Pennsylvania Supreme Court. They played it, and lost.

Last week, the Pennsylvania Supreme Court said it will not hear the case, leaving in place the Commonwealth Court decision.

The Supreme Court of Pennsylvania refused to hear an environmental group’s allegations that a Sunoco Inc. unit abused its eminent domain power assembling land for the controversial Mariner East 2 natural gas pipeline, according to an order made public Thursday. With its brief order issued Wednesday and made public Thursday denying the Clean Air Council’s petition for allowance of appeal, Pennsylvania’s highest appeals court left intact a Commonwealth Court ruling that blocked most of the council’s efforts to challenge the pipeline’s use of eminent domain as a state-approved public utility, though now the lower court is able to take up the group’s sole remaining claim over whether Sunoco is constrained by the state constitution’s Environmental Rights Amendment. The state Supreme Court gave no reason for the denial. “This ruling does not dispose of the entirety of our case,” said Alex Bomstein, senior litigation attorney for the Philadelphia-based Clean Air Council. “This was a partial loss but not a complete loss.” Bomstein said the Commonwealth Court ruling blocked the first six of the group’s claims against Sunoco, but reserved original jurisdiction over whether Sunoco, by using the governmental power of eminent domain, also had to assume the government’s responsibility under the Environmental Rights Amendment for assessing its project’s impact on the state’s air and water. If Sunoco could exercise government power without shouldering the same responsibility as the government, it would set a precedent that could threaten other constitutional protections, Bomstein said. “It would be very easy for the government to avoid its constitutional requirements by delegating things to non-state actors,” he said. Further consideration of the Clean Air Council’s remaining claim had stalled in the Commonwealth Court, which Bomstein said may have been a result of the court waiting to see what the state Supreme Court did with the rest of the case. The rest of the Commonwealth Court’s April decision had overturned the Philadelphia Court of Common Pleas and ordered that court to grant Sunoco summary judgment on the other six claims. The Clean Air Council had sought to have the Philadelphia trial court independently determine whether Mariner East served a valid public purpose and could therefore be certified as a public utility in order to use eminent domain, but the Commonwealth Court said such challenges needed to be brought as part of actual eminent domain proceedings. Counsel for Sunoco declined to comment.

About the shortest and sweetest and to the point ruling we’ve ever seen:

Editor’s Note: It’s so nice to see the arguments of these gentry class shills summarily rejected by a Pennsylvania Supreme Court they were so positive would jump at this opportunity to expand the Commonwealth’s Environmental Rights Amendment into something absurd. They’re still hopeful because this very political court “reserved original jurisdiction over whether Sunoco, by using the governmental power of eminent domain, also had to assume the government’s responsibility” under the Amendment.

The shills will be back again, in other words, to try to pry open that crack in the door, either on the Mariner East 2 or some other pipeline case. The industry and others need to be prepared to demonstrate where such mischief would invariably lead — to chaos and some kind of hell akin to New York.

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