On October 18, two important pipeline cases were argued, back-to-back, before a seven-judge panel in Philadelphia. In both cases, the plaintiffs were affected residents who wanted the court to enforce local zoning ordinances that are violated by the location of the Dragonpipe (the Mariner East 2 pipeline). One case was brought by six residents of MIddletown Township in Delaware County, the other by two residents of West Goshen (Chester County) and the Delaware Riverkeeper Network. In both of them, the plaintiffs were appealing decisions that they had lost in lower courts. In both cases, the plaintiffs had filed suit after their municipalities had failed to enforce local zoning regulations. The court will presumably rule on the two cases together.
I wasn’t able to be there in person (I needed to show up for my day job) but I had an opportunity to do a careful reading of some of the briefs beforehand, and two news reports afterwards (those reports are here and here).
Although both sides had prepared a series of arguments around various aspects of the disputes, the hearing centered around one issue: the relative roles of the Public Utility Commission (PUC) and local municipalities in determining where pipelines could go. The judges had read the actual testimony in the cases in the form of transcripts of the previous trials, so the focus in the courtroom was more on legal arguments, not the facts of the cases.
Who’s in charge of pipeline location? Both sides agreed that the PUC’s charter would allow it to regulate pipeline location if it wanted to, and both agreed that the PUC was not doing that. Beyond that, they differed. The plaintiffs argued that because PUC had decided not to regulate pipeline location, local municipalities needed to take on that responsibility.
Sunoco, on the other hand, argued that the PUC had the exclusive authority to regulate pipeline location; and if they didn’t do it, no one else could. Ultimately, according to Sunoco, the case should not even be in federal court. The plaintiffs should be dealing with the PUC instead.
Will the judges buy Sunoco’s argument? According to the accounts of the hearing, the judges were dubious about Sunoco’s arguments. They asked why Sunoco should be completely free to put pipelines anywhere they wanted. Sunoco’s argument was that it would be impossible to build pipelines if the company had to comply with the different zoning ordinances in every municipality. Attorney Michael Bomstein, representing the Middletown plaintiffs, responded that Sunoco needed to prove that this was an actual problem, and not a hypothetical scenario–and Sunoco had not presented evidence that they had even considered trying to comply with local zoning.
If the news accounts are accurate in reflecting the skepticism of the seven-judge panel, there is actually a chance that Sunoco will lose these cases. That would be a major David-and-Goliath story in the context of Sunoco’s seemingly unstoppable railroading of the Dragonpipe project. It would not necessarily stop the Dragonpipe permanently, but it would certainly slow it down.
It isn’t clear how long we will have to wait for the panel’s verdict.
One of the legal issues that was not raised or resolved in these cases was Sunoco’s disputed status as a “public utility”. That is a key factor in a different case, one being brought by the Clean Air Council.
Another factor that was mentioned in the legal briefs (but which does not appear to have been discussed in court) is the question of whether Sunoco’s arbitrary decisions about the route of the Dragonpipe violate due process, since no one who was affected had a chance for input. That, too, may surface in later cases.