On September 11, 2020, Sunoco was drilling under a tributary to Marsh Creek Lake as part of its construction of the Dragonpipe (Mariner East pipeline system) and experienced a frac-out (“inadvertent return” of drilling fluid). Thousands of gallons of drilling fluid made its way into Marsh Creek Lake, a popular recreational site and source of drinking water. In response, the Department of Environmental Protection ordered Sunoco to reroute the pipeline to take it farther from the lake.
Sunoco’s attempt to “supersede” the DEP’s order. Sunoco immediately filed an appeal with the Environmental Hearing Board (the EHB, which is the court of appeal for DEP rulings). Going beyond the standard appeal process, Sunoco filed a “petition of supersedeas”, requesting an expedited resolution of the matter. The company is trying to make the argument that the DEP’s reroute order was illegal and should be immediately overturned (“superseded”), rather than waiting for the outcome of a trial. The supersedeas proceeding is an abbreviated hearing process that provides an answer in weeks, rather than months. Sunoco is keenly interested a quick restart to the drilling process that caused the release of drilling fluid into the lake, and desperately wants to avoid the reroute.
At this point, it is important to remind readers that I am not a lawyer and have no legal background. I am a layperson trying to make sense of a fairly complicated legal situation. You can weigh the value of what I write accordingly. You can also follow the links provided, read the actual documents in the case, and draw your own conclusions.
The supersedeas hearing has already taken place (it began October 29) and both parties (Sunoco and the DEP) have filed briefs summarizing their arguments. It is now up to Judge Labuskes of the EHB to decide the outcome. The judge has to determine whether the case Sunoco has presented meets the standard that the EHB has set for a ruling to be superseded without a full trial. It is not clear how long the judge will take. If he rejects Sunoco’s request to overturn the DEP’s order, the matter will go to trial—unless the parties can reach an out-of-court settlement (which has happened in the past).
While the judge is reviewing the briefs for each side, we can do the same. The briefs are available on the EHB website. Sunoco’s brief is here, and the DEP brief is here. Their arguments are summarized below.
The sentence at the heart of the argument. The DEP wants Sunoco to reroute the pipeline away from the lake unless the company can show, in a full trial, why they should not. Sunoco, on the other hand, wants to avoid the trial, which (even if Sunoco won, which is far from certain) would hold up construction until late spring or early summer. The company wants the judge to allow them to resume drilling right away or, failing that, to require the DEP to treat the Marsh Creek spill as a “normal” frac-out and go through the same restart evaluation as the DEP has done after scores of previous spills.
At the heart of the dispute is the second paragraph of the DEP order, which consists of only this sentence:
[Sunoco] shall take all steps necessary, including the submission of appropriate application and supporting materials, to implement the re-route of HDD-S-3-0290 that [Sunoco] previously found to be technically feasible in the Re-evaluation Report.
We’ll return to that “Re-evaluation Report” and its “technically feasible” route in a moment.
Sunoco needs to convince the judge of two things: that this rerouting requirement in the DEP order is most likely illegal, and that the requirements for overturning it immediately (“superseding” it) have been met.
Sunoco also objects to two other paragraphs of the order. It objects to the very first paragraph, which tells Sunoco that all construction must stop at the drilling location until Sunoco receives written permission from the DEP to resume. This paragraph, Sunoco says, is irrelevant because Sunoco was already required stop after a frac-out and wait for authorization to resume. The company also objects to the sixth paragraph, which says it must fill the partially completed drill hole with grout. It argues that, if it wins the court fight, it will want to simply continue the existing hole, not start a new one. The DEP’s counter-argument is that the drill hole is in danger of collapse, which might cause environmental problems.
But the second paragraph, about the reroute, is the most important one.
Where did this new route come from? Because of an agreement Sunoco signed in 2017 (to resolve a previous EHB fight), the company must file a “re-evaluation report” after each frac-out. There are over 100 of these reports on the DEP website. The DEP cites one that Sunoco filed for this stretch of the pipeline on May 28, 2019, after a previous frac-out, which did not result in drilling fluid reaching Marsh Creek Lake. That re-evaluation report is here.
As part of each re-evaluation report, Sunoco is required to evaluate the feasibility of an alternative route for the pipeline. It routinely reports that there are options that are feasible but impractical. In its report for this particular stretch, Sunoco described a 1.01-mile alternative route as technically feasible but “not practicable” when compared with their chosen horizontal directional drilling (HDD) approach.
The DEP, in its reroute order, is saying that the HDD has not worked, so Sunoco must go back to its “Plan B”—the feasible 1.01-mile alternative route.
Sunoco’s argument against rerouting. Sunoco gives two primary arguments against having to reroute the pipeline. It says that the DEP lacks the legal authority to tell it where to route its pipeline, and it claims that the DEP would have to show that there is no possible alternative reroute that would have less environmental impact than the 1.01-mile reroute would have.
The DEP, in response, argues that it is merely telling Sunoco to use the backup route that it has already told the DEP is “technically feasible”. It also argues that it does have the necessary legal authority, because of the threat to the environment.
Both parties cite the laws, regulations, and previous decisions that support their positions.
Can Sunoco meet the requirements for supersedeas? Because Sunoco wants to overturn the DEP’s order immediately rather than through a full court proceeding, it must meet three criteria that the EHB uses for granting supersedeas. There must be:
- Irreparable harm to the petitioner (Sunoco) if the order is not superseded
- Likelihood that the petitioner would prevail if the case went to a full trial
- No likelihood of harm to the public (which would include harm to groundwater and the lake) if the order is superseded
All three criteria must be met for supersedeas to be granted.
Predictably, Sunoco claims to meet all three. It argues that it will suffer “irreparable harm” in the form of lost profits if the pipeline is delayed. It claims its arguments would prevail at trial, and it says that it can take measures that will reduce to a “tolerable” level the risk of further pollution of the lake.
The DEP takes the opposite side on all three. First, in past cases, the standard for “irreparable harm” has been much more severe financial stress than Sunoco is talking about (for example, losing all income for half a year or going out of business entirely). Sunoco, by contrast, only claims it will lose close to $20 million dollars due to the costs of rerouting and delay in pipeline completion. This is a trivial sum for a company that made $2.87 billion in its most recent quarter alone.
Second, the DEP thinks it has a strong case and would prevail in a trial. A win for Sunoco is certainly not a given (which is what would be required to meet the second criterion).
Third, the DEP points to the fact that, despite repeated assurances that it could drill safely and without damaging the environment, Sunoco has shown time and time again that its construction practices do cause pollution. How can Sunoco be believed when it claims that, this time, it will prevent environmental damage if it is permitted to continue drilling at the Marsh Creek Lake site? The DEP emphasizes that it cannot count on Sunoco’s assurances about risk because they have been wrong so often in the past.
What happens now? The immediate question, which will probably be resolved within a few weeks (if not a few days) is whether Judge Labuskes accepts Sunoco’s argument that the DEP’s reroute order should be immediately superseded. If he does overturn the order, Sunoco has laid out two options for him. They would prefer that he give them permission to restart drilling immediately, but their fallback position is that he should require the DEP to deal with Sunoco’s restart report promptly.
As I look at the evidence (again, I am not a lawyer) it seems clear to me that Sunoco’s case doesn’t meet any of the three criteria for granting supersedeas. Sunoco must meet all three. But as I see it (1) Sunoco’s ongoing business will not be seriously threatened by a delay, (2) it is at least debatable whether Sunoco would win at trial, and (3) there really is the potential for further environmental harm.
I have to conclude that the judge probably will not supersede the DEP’s reroute ruling. That would set things in motion for a trial, which would occur sometime in the spring.
Of course, there would not be a trial if the Sunoco and the DEP could come to an out-of-court settlement, and that has happened in at least one of Sunoco’s previous EHB cases. But it is hard for me to imagine the DEP accepting a settlement that doesn’t involve rerouting the pipeline, and equally hard to imagine Sunoco accepting a settlement that does.
So it seems likely that we will be watching this unfold for months. Meanwhile, no work will be done on this stretch of the pipeline.
What are you thankful for? Don’t forget the Safety 7. These seven local citizens made a stand against Sunoco. Now, they need your support. Please contribute to help defray the expenses associated with the Safety 7 trial before the PUC. The hearings are over now, but the bills are still rolling in. Whether you can afford $10 or $100 or $1,000, every bit helps. Details are here.