The AP is reporting that the FBI is investigating the process through which Sunoco obtained construction permits for the Dragonpipe (Mariner East pipeline system) from the Department of Environmental Protection (DEP). The story has now been picked up by national news outlets.
The API story has only a brief mention of the efforts that originally brought the situation to light. I would like to provide a little more detail about how that came about.
The permits. In the summer of 2015, Sunoco submitted a series of permit applications to the DEP relating to the way the Dragonpipe would be constructed. During the ensuing 18 months, the DEP raised issues with the permits and Sunoco submitted new documents in response—the standard process for resolving permitting issues.
“The fix is in.” In early 2017, a group of four concerned citizens from Chester and Delaware Counties became concerned about the magnitude of the remaining deficiencies. On February 6, they made a trip to Harrisburg to meet with DEP Secretary McDonnell to argue that additional public hearings were needed. McDonnell was not receptive to their request. One of the four, Eric Friedman, was quoted after that meeting: “It appears the fix is in.”
A week later, on February 13, the DEP made a sudden and apparently unprecedented move. It approved the remaining permits without resolving any of the outstanding issues.
The appeal. Immediately, the Clean Air Council, joined by the Delaware Riverkeeper Network and the Mountain Watershed Association, appealed the permit approvals. In their appeal, [link] they raised dozens of objections. They noted, among many other things, that:
- “…when the Department issued the Permits, it had not yet completed its technical review. The applications were in large part incomplete, internally inconsistent, and in violation of the law.”
- Though the applications were found to be incomplete, the DEP “continued to review the applications, ultimately issuing the Permits without understanding the full nature of the activities it was permitting.”
- “ The Department … issued the Permits despite knowing that the plans were not final, and in fact would need to be materially changed before construction commenced at various locations due to inconsistencies between the plans and the on-the-ground conditions, and the lack of property rights allowing [Sunoco] to do construction work in certain portions of the proposed Project location.”
Still, construction was allowed to start while Sunoco fought the appeal. More than a year later, in July of 2018, a settlement agreement was reached that placed restrictions on Sunoco but didn’t stop construction. More on that below.
The ethics investigation. Meanwhile a completely separate investigation was going on. Text messages between Yesenia Bane, a close advisor of Governor Wolf, and McDonnell (the DEP head) came to light. The messages cover a period between late January and early February of 2017. Bane, whose husband was a lobbyist in the oil and gas industry, told McDonnell that the Governor wanted the DEP to issue the permits quickly. For example, on February 9, she texted: “Can we touch base on ME2 at some point today? … We need to have the comment responses done tomorrow.”
Less than a week after that message, the permits were issued.
These text messages were the basis for an ethics complaint against Bane. The investigation, which finally ended in April 2019, found that Bane’s actions had not met the standard for an ethics violation because it was not clear that she or her husband had benefitted financially. However, the State Ethics Commission noted, “… your position, coupled with the employment of your husband as an industry lobbyist, created a perception that your actions in fulfilling the Governor’s policy agenda was a way for you to financially benefit your husband and/or his employers.”
Although the letter of the law may not have been violated, this kind of regulatory interference by the Governor’s office certainly seems unethical.
The settlement. In July of 2018 (while the ethics investigation was still happening) Sunoco settled with the Clean Air Council and the other two groups that had challenged the DEP permits. One of the terms of that settlement agreement that has proved particularly beneficial is the requirement for Sunoco to obtain new DEP permits under certain conditions. For example, if the HDD process resulted in “inadvertent returns” of drilling fluid during HDD for the first pipe, terms state that the second pipe at that location requires a new permit process, including an opportunity for public comment. That has provided an important opportunity for public involvement in the permitting process.
Still, the settlement left unanswered many of the questions about exactly why the original permits were issued prematurely. For a time, it looked as if those questions would never be answered.
The criminal investigations. This is the part you probably are already familiar with. In December of 2018, the Chester County DA’s office launched a criminal investigation of Sunoco. Later, a grand jury was impaneled to hear evidence in the case, and that process is still continuing.
Then, in March of 2019, the Delaware County DA, in partnership with the state Attorney General, launched a second criminal investigation. That, too, is still under way.
And now, the FBI has joined the fray.
Where does this lead? It isn’t clear how much difference the FBI’s involvement will make. It is probably good to have a federal agency involved, since it is free from some of the political constraints that might make it difficult for county and state agencies to investigate the Governor’s office.
On the other hand, one has to wonder to what extent the recent politicization of the Justice Department could taint the FBI’s work. Could it create a bias in the FBI against a Democratic governor? Could it even create a bias supportive of the oil and gas industry? These ideas certainly seem unlikely—but these are not normal times.
In any case, the FBI’s involvement will help raise public awareness of pipeline problems, and it will put Sunoco increasingly on the defensive. Perhaps it will make regulators and legislators more willing to take a stand. Maybe it will even hasten the day when construction and operation of the Dragonpipe is halted—not just because of the criminal acts that apparently led to its being permitted, but also because of the risks it represents to thousand of Pennsylvanians.