The meaning of the word “public” has been one of the casualties of the legal battles over the Dragonpipe (Mariner East 2) in court and before the Pennsylvania Public Utility Commission. The common meaning of the word (Merriam Webster says it means “of or concerning the people as a whole”) has been distorted into an unrecognizable pretzel of a word in Sunoco/ETP’s courtroom arguments. It is time for this to be rectified.
A good illustration of the problem comes from the bizarre arguments Sunoco used to win its “eminent domain” case against Charles and Karen Katz in Commonwealth Court last year. The Katzes were challenging Sunoco’s right to use eminent domain—the legal procedure that utilities can use to buy up land for “public purposes”, whether the owner agrees or not— to seize their land.
Sunoco’s argument was based on three main points, all of which depend on a very distorted notion of “public”.
- Since we transport a petroleum product, we’re serving a public purpose. Sunoco cites a section of Pennsylvania’s Business Corporation Law (BCL) concerning eminent domain. Sunoco argues, “Through the BCL, the General Assembly determined that a public utility corporation’s condemnation of property to provide petroleum product transportation service for the public is a public purpose.” That section of the BCL was written in a time when petroleum products actually were mostly for a public purpose: transportation and lighting. It did not anticipate that land would be seized for the transportation of petroleum products that are never used by the public (such as the ethane to be carried by the Dragonpipe).
- Since we’ll carry NGLs for anybody with a suitable fleet of ships or a petrochemical plant, this service is for the public. Sunoco argues that “a service is ‘for the public’ when it is not limited to particular customers”; and the Dragonpipe is open to the public, in the sense that anyone can buy access to it for transporting their NGLs. Using this logic, Sunoco could equally well argue that building railroad cars is a “service for the public”, since they could be purchased by anyone with a railroad. In fact, it is almost impossible to think of any product that would not be classified as “for the public” using Sunoco’s argument. It renders meaningless the concept of “for the public”.
- Our CPC proves that the PUC thinks our proposed service will benefit the public. Sunoco argues, “A public utility corporation’s power to condemn under the BCL depends on the PUC’s regulation of that corporation as a public utility and the PUC’s determination that the corporation‘s proposed service will benefit the public through issuance of a CPC [Certificate of Public Convenience].” It’s true that Sunoco has a CPC for each of the counties the Dragonpipe goes through, but it is not true that those CPC’s actually represent a “determination that the…service will benefit the public.” Most of the CPCs were obtained when Sunoco purchased a company in an entirely different line of business. And there is certainly no actual “public convenience” associated with the Mariner East pipeline. In fact, it is a “public risk”.
All of these arguments intentionally ignore the meaning that the phrases “public utility”, “public service”, “public benefit”, and “public convenience” had when these laws and regulations were originally created. Sunoco’s lawyers have twisted them into phrases that serve Sunoco’s profit motive.
What Sunoco/ETP is doing is exploiting dubious loopholes in the public utility laws, and subverting the concept of “public” (and the actual public be damned). Unfortunately, the PUC is looking the other way, and so is the state legislature, to their lasting shame.
The Public Utilities Commission, in particular, has become politicized and has lost its focus on one of its primary missions: “to protect the public interest”. It has lost sight of who the “public” is that it is meant to serve. It has become one more corporate tool.
And the courts, for the most part, have accepted these arguments as legitimate.
This situation must change. The PUC commissioners must start to act in the actual public interest or be replaced. The legislature must fix the outdated laws that permit this eminent domain travesty. The laws must be changed so that:
- A corporation can act as a “public utility” only when providing the public with services like electricity, water, and natural gas (and not when acting solely for its own financial gain).
- Certificates of Public Convenience, if they are worth retaining as a regulatory tool, must apply only to a specific line of business and for a specific period of time.
- The routing of pipelines must be regulated, and pipeline companies must show how they can minimize the risks to nearby populations and the environmental damage that pipeline construction will cause.
Until we insist on these changes, Sunoco/ETP and its brethren will continue abusing us—the public— in our own name.