Guest post by Harrison Gilmour

All across Pennsylvania, Sunoco used eminent domain to seize private property for pipeline easements for Mariner East, often in close proximity to houses. If it had not had that ability, the construction of Mariner East probably would have been impossible.

Early in the construction process in 2014, Sunoco’s ability to use eminent domain was thrown into doubt when York County Common Pleas President Judge Linebaugh denied Sunoco’s attempt to condemn private property in the case Sunoco v. Loper. Sunoco filed a motion or two to try to get Linebaugh to reconsider (which he didn’t) but Sunoco didn’t appeal his decision. Instead, it engaged in what Commonwealth Court Judge Patricia McCullough called “a dizzying array of procedural moves” in her vigorous dissent in Sunoco v. Martin et. al., the case that set the precedent for everything that came next.

The power of “Certificates of Public Convenience”. The theory that Sunoco settled on was both straightforward and terrifying. It came in two parts.

Part 1: Sunoco had obtained a “certificate of public convenience” for each of the 17 counties through which it proposed to construct Mariner East. (Remarkably, these certificates were, and are, issued on a county-by-county basis, rather than a project-specific basis.) Sunoco acquired them by purchasing an ancient and probably abandoned pipeline (now known as Mariner East 1), for which such certificates had been issued in the 1930s by the predecessor to today’s PUC. Sunoco then applied to the PUC for the transfer of these certificates to it, which PUC granted. As far as I know, no one objected, probably because no one understood the significance to Mariner East at the time.

Part 2: Sunoco cited Pennsylvania’s so-called “Business Corporation Law” (BCL), Title 15 of Pennsylvania’s “consolidated statutes” (usually abbreviated “15 Pa.C.S.”) Section 1511(a) of Title 15 says that “A public utility corporation…shall…have the right to take, occupy and condemn property” for the purpose of “[t]he transportation of artificial or natural gas, electricity, petroleum or petroleum products or water or any combination of such substances for the public.” This is the terrifying part: because the certificates of public convenience are awarded on a county-wide basis, Sunoco has explicitly argued that the combination of the certificates of public convenience plus section 1511(a) of the BCL entitle it to seize any or all private property in any of seventeen counties. By Clean Air Council’s reckoning, Sunoco has laid claim to about 40 percent of Pennsylvania.

Now you may begin to see why the Andover Homeowners’ Association didn’t even get a hearing after Sunoco filed its “Declaration of Taking” in 2017. The judge said, in effect, “OK, they have a certificate of public convenience. PUC gave it to them, and I’m not going to second-guess why. And over here, in the Business Corporation Law, it says that if you have this certificate, you can seize private property. I guess we’re done here.” And PUC, for its part, said in effect, “We just give certificates of public convenience. If Sunoco uses them to take private property, that’s a matter for the Courts.” And the Courts refused to question how or why these certificates had been awarded, instead simply accepting Sunoco’s argument that with them it could take any property it wanted under the BCL. The combination of these two things endowed Sunoco with the terrifying power to seize up to 40 percent of Pennsylvania; meantime, the PUC and the Courts each dodged responsibility for the lousy consequences of their combined actions.

The strangely-worded limitation. There was yet a limitation to the authority in section 1511(a) of the BCL. It’s in section 1511(b), and though Andover and others raised it repeatedly, it was ignored by Sunoco and the Courts (until the Katz case, which I’ll get to in a moment). Section 1511(b) is oddly-worded, mysteriously punctuated, and unclear on its face (though it’s obvious that the legislature intended it as a limitation on the use of 1511(a)). Here it is in its full weirdness, pertinent part highlighted:

(b)  Restrictions.–The powers conferred by subsection (a) shall not be exercised:

(1)  To condemn for the purpose of constructing any street railway, trackless-trolley omnibus, petroleum or petroleum products transportation or aerial electric transmission, aerial telephone or aerial telegraph lines:

(i)  Any dwelling house or, except in the case of any condemnation for petroleum or petroleum products transportation lines, any part of the reasonable curtilage of a dwelling house within 100 meters therefrom and not within the limits of any street, highway, water or other public way or place.

(ii)  Any place of public worship or burying ground.

(2)  To condemn any place of public worship or burying ground for the purpose of constructing any elevated street railway, sewer or underground street railway line.

What does that mean? Well, a PUC lawyer brought it up in a Feb. 17, 2016 letter to former state Sen. Andy Dinniman. (Dinniman had written to the PUC asking for, among other things, an explanation of Sunoco’s claimed eminent domain authority). The PUC lawyer wrote: “I am aware that Sunoco interprets the language in subsection (b)(1)(i) [of the BCL] as permitting it to condemn within 100 meters of a dwelling house. Whether that is a reasonable interpretation or not is a matter for the courts of common pleas and Pennsylvania’s appellate courts, not the Commission.” And with that, PUC washed its hands of the whole matter, despite the obvious fact that the entire project rested on the meaning of this section.

The Katz case. There it sat, until Katz of Edgmont Township objected in court to the seizure of his property by Sunoco. Sunoco v. Katz eventually made it to Commonwealth Court, and Katz specifically raised the issue of section 1511(b), as Sunoco was seeking to seize property well within 100 meters of his dwelling. The opinion in Sunoco v. Katz was written by Commonwealth Court senior Judge Pellegrini, who addressed section 1511(b) in footnote 6 of his opinion. He wrote: “Section 1511(b) of the BCL provides that the power of eminent domain granted to public utility corporations for purposes of constructing petroleum or petroleum products transportation cannot be exercised within “any part of the reasonable curtilage of a dwelling house within 100 meters therefrom.” 15 Pa.C.S. § 1511(b). No such restriction exists on the transportation of artificial or natural gas.” Well, there was no dispute between the parties that the proposed ME was a “petroleum or petroleum products” pipeline. Thus, by his own reasoning, Pellegrini should have denied the taking—but, inexplicably, he let it stand. (Incidentally, Judge McCullough once again dissented to the opinion that permitted the taking of Katz’s property. This time she diplomatically called her dissent a “concurring opinion.”)

Katz appealed the decision to the state Supreme Court, partially based on the indisputable fact that Pellegrini’s opinion was inconsistent with itself. The Supreme Court declined to take the case (as it has until recently declined to touch anything having to do with Mariner East), even though internally inconsistent Commonwealth Court opinions are precisely the kind of thing it ought to take up.

Senator Comitta’s bill. Subsequent to Katz, I had a number of discussions with lawmakers about the incoherently-punctuated section 1511(b). Perhaps as a result of these talks, state Rep. Carolyn Comitta (now state Sen. Comitta) brought a bill to the legislature. Her bill was super simple: by striking two commas and 14 words that formed an apparently inadvertent double negative, her bill would have revised the section to make it both clear, and consistent with Pellegrini’s opinion in Katz. Her bill was referred to the House Consumer Affairs Committee, where it died without getting either a hearing in committee or a vote. You can see the simple bill and its list of cosponsors here.

If the bill proposed by Senator Comitta had become law, Sunoco’s ability to exercise eminent domain for a pipeline carrying hazardous liquids (“petroleum products” in the language of the state legislature), like Mariner East, would have been restricted to areas that were more than 100 meters (roughly the length of a football field) from any house. Many parts of Delaware and Chester counties are so densely populated that no potential pipeline right-of-way could meet that criterion.