appeal dinied 6-2-20

On June 1, Sunoco suffered a legal setback in a case that could have implications for its ability to continue operating the Dragonpipe (specifically, the Mariner East 1 pipeline). It may also impact Sunoco’s claim that it is a “public utility” and that Mariner East is a “public utility service”.

The case involved is one that Concerned Citizens of Lebanon County (CCLC) filed, claiming that Sunoco had built an enclosure for a pumping station for Mariner East 1 without the proper authorization under local zoning rules. Sunoco lost the case on appeal to the Commonwealth Court, and now has lost on appeal to the state Supreme Court as well.

You can read a description of the CCLC case in a previous blog post. The issue that the courts have now definitively decided is, on the surface, a minor one: that the local Zoning Hearing Board in West Cornwall Township, Lebanon County, improperly permitted Sunoco to construct a building for a pumping station.

Sunoco (and the local Zoning Hearing Board) tried to make the case in court that Sunoco was a public utility and that the local zoning ordinance contained an exemption for public utilities. The Commonwealth Court did not rule on the question of whether Sunoco was a public utility, but found that the ordinance does not provide for an independent public utility exemption.

The PA Supreme Court did not provide any reason for turning down Sunoco’s appeal. The ruling, in its entirety, consists of one sentence: “AND NOW, this 1st day of June, 2020, the Petition for Allowance of Appeal is DENIED.”

What happens now? Now that Sunoco and the Zoning Hearing Board have lost this case, Sunoco is in the position of having an illegally-constructed building housing its pumping station in West Cornwall Township. The company’s available options would seem to be: remove the structures or seek conditional use approval to keep the buildings in place; if necessary, build a new building with a pumping station in a different location; or simply wait to be compelled to act by some kind of enforcement action.

I will provide updates on this case as they occur.

The question of “public utility” status. The Commonwealth Court, in its October 2019 ruling on the CCLC case, included an important statement on Sunoco’s presumed status as a “public utility” and on Mariner East as a “public utility service”. The court did not express an opinion on these issues, but it did note that “…the PUC never issued a final decision on whether Sunoco is a public utility corporation with regard to ME1 and whether the repurposing of ME1 for transporting NGLs constituted a public utility service.”

That note in the ruling, and the court’s accompanying description of the actual actions of the PUC in this matter, serves as a reminder that the public-utility status of Sunoco and of Mariner East has never actually been resolved. As the court’s statement indicates, the foundation for Sunoco’s claim is still in doubt. If the PUC ever does take up these issues, it could have broad implications for the entire Mariner East pipeline system.