Just before Thanksgiving, seven residents of Chester and Delaware Counties initiated a case with the Public Utility Commission (the “Safety 7” case) against the Dragonpipe (Mariner East pipeline system). They asked for ME1 (the old 8-inch, operational part of the Dragonpipe) to be shut down, and for the other pipelines involved to be prohibited from operating. The filing had two parts: an “emergency petition” (which is handled rapidly via an abbreviated process) and a “formal complaint” (which takes months and is similar to a court case). On December 11, the emergency petition was denied.
The order by Judge Barnes denying the petition can be read here: Order denying Safety 7 petition.
What follows is my summary of the main points made in the judge’s order.
The PUC has a set of four criteria, all of which must be satisfied for an emergency petition to be granted:
- The plaintiffs’ right to relief is clear
- The need for relief is immediate
- The injury would be irreparable if relief is not granted
- The relief requested is not injurious to the public interest
The judge decided, in all four instances, that the plaintiffs hadn’t made a convincing case.
Judge Barnes: It’s not an emergency unless you know how likely it is. The single overriding issue in evaluating each of the four criteria, in the judge’s view, was the likelihood of an accident. As Judge Barnes interprets the legal and regulatory issues, it is not enough to say that a catastrophe is possible: to say it is an emergency, you must show how probable it is. The plaintiffs, on the other hand, argued that even if the likelihood of a catastrophe is very low, an emergency exists.
Judge Barnes was unwilling to accept the plaintiffs’ argument without information about the likelihood of an accident. Information of that kind was available in the Citizens’ Risk Assessment, and it was introduced as evidence at one point. But it was subsequently withdrawn as evidence (for reasons that haven’t been explained to me) and the case was based entirely on the idea that a catastrophe, no matter how unlikely, had to be prevented.
Throughout the judge’s order, she insists that information on the likelihood of an accident is required in order to claim an emergency.
Here are the key elements in her decision on each of the four points.
- Right to relief is clear
Judge Barnes writes: “Injunctive relief requires sufficient evidence to demonstrate that an emergency condition exists [and] that it is more probable than not that an emergency will occur imminently…. Petitioners’ argument that the showing of a consequence without the risk of consequence is sufficient to meet the standard of an emergency is not persuasive.”
- Need for relief is immediate
“Without more evidence to show an imminent safety risk…, Petitioners have failed to meet their burden of showing the need for injunctive relief is immediate.”
- Injury would be irreparable if relief is not granted
“As Petitioners conceded the risk of fatalities is small, they have failed to show they would more likely than not be injured irreparably either through fatalities, personal injury or loss of property during [this] complaint proceeding.”
- Relief requested is not injurious to the public interest
“Petitioners argue that the temporary cessation of operations of ME1 and construction of the ME2 workaround pipeline would result in the public gaining temporary protection from the possibility of a catastrophic event at Little League fields, elementary schools, senior citizens centers and thousands of homes and businesses in Chester and Delaware Counties…. I find Petitioners’ assertion without evidence of probability of such a catastrophic event is insufficient to meet the standard….”
“Sunoco and Range Resources offered credible evidence that they would be financially negatively impacted if the injunctive relief would be granted…. Shutting down service on ME1 and enjoining the commencement of ME2 will directly and significantly negatively impact Sunoco and its shippers, including Range Resources…. Additionally, some job losses and/or layoffs to steamfitters and other workers during the holiday season in the Marcus Hook Facility may occur.”
A finding that the plaintiffs failed on any one of the four criteria would have been enough to deny the petition, and Judge Barnes found that they failed on all four.
What happens next? The final step for the emergency petition is for the full five-member PUC to confirm it at their next public meeting (December 20). It is very unlikely that they would reverse Judge Barnes’ decision.
Then, the process moves on to the “formal complaint” phase. This is very much like a court trial. As I understand it, there is a “discovery” phase, where attorneys on both sides can request documents and depose witnesses under oath. This will take several months. Then, the case is argued at the PUC once again. The question will again be whether the operating pipeline(s) can continue to run, and whether new ones can be constructed. The question of whether an “emergency” exists will presumably not be at issue, however.
In the meantime, it seems, Sunoco is free to operate both ME1 and the “frankenpipe” (composed of sections of ME2, ME2x, and an old 12-inch pipeline), and to continue new pipeline construction.
Added 12-21-18: There is some confusion around the PUC’s action at its December 20 public meeting. Although the video shows the commissioners voting 4-1 to confirm Judge Barnes’ decision denying the emergency petition (Commissioner Place dissented), a document that appeared on the docket subsequently says that they gave themselves until their next public meeting (January 17, 2019) to consider the issue. The document says that the process was extended “in order to afford us adequate time to address the question raised”. We have to assume the written document, rather than the video, represents what is actually taking place.