Energy Transfer, through its law firm, notified the PUC on June 9 that “the Mariner East 1 pipeline is no longer in HVL service”. That means highly-volatile liquids (“HVLs”—explosive, high-pressure ethane, propane, and butane) are no longer flowing through that very old 8-inch pipeline. That’s a victory for pipeline opponents, and especially for the “Safety 7” complainants (the group of citizens involved in the “Flynn et al. v. Sunoco Pipeline” case before the PUC). Energy Transfer would not have backed off on this use of ME1 had it not been for the restrictions placed on it by the PUC ruling in the Safety 7 case. (The company has also retreated from using the old 12-inch pipe that was a segment of the “Frankenpipe”. That, too, represents an accomplishment for the Mariner East opposition.)
And the effects of the Mariner East struggle will not end with the completion of the pipeline. We are already beginning to see how that struggle triggered changes in regulations and the attitude of the public. I’ll return to some of those changes, which will last for decades, at the end of this blog post.
But though the latest ME1 news is a victory, it’s a victory with a bittersweet taste. As we near the end of a long fight, it is clear that two new, large pipelines (ME2 and ME2X) will be with us for the foreseeable future. There is no likelihood, short of a catastrophe caused by a leak (which is still a real possibility) that highly volatile liquids will stop flowing through our neighborhoods in those new pipes.
And we can’t kid ourselves that new pipelines are safer than old ones. Energy Transfer’s Revolution pipeline exploded after only a week of operation. Similarly, the massive ethane explosion near Follansbee, West Virginia involved a pipeline that was only one year old. On top of that, the construction of the new Mariner East pipelines involved substandard practices (sharp bends, pairs of pipes with only a few inches of separation, and coating defects, among others). So the danger remains.
Although Energy Transfer has succeeded in pushing through the two new pipelines, the loose band of Mariner East opponents (including the Safety 7 team) can be proud of what was accomplished. Despite the millions of dollars Energy Transfer spent on its legal team, it was unimpressive against a group of local residents and their (excellent) pro bono lawyer.
When Judge Elizabeth Barnes, who handled the case for the PUC, made her ruling, there were some significant wins for the Safety 7 team. Among others:
- Sunoco would have to develop new public awareness plans and have them reviewed by the PUC
- Sunoco’s public awareness materials would have to explicitly mention the possibility of “property damage, personal injury, burns, asphyxiation, and death (or fatality)” in the event of a leak
- In the event of an emergency, notifying county authorities would not be enough—police and some school districts would also have to be notified
- Sunoco would have to adhere to stricter requirements for pipeline depth below ground level (“depth of cover”) and distance from other underground pipes and structures
On the other hand, some of the Safety 7 requests were dismissed:
- Sunoco would not be required to add an odorant or implement an audible alarm system
- The “Certificate of Public Convenience” (the 1930’s-era document that allowed Sunoco to act as if it were a public utility, and that allowed ME2 and ME2X to be considered an “expansion” of ME1) would not be amended
- The pipelines would be allowed to continue carrying HVLs (as long as Sunoco did the required restoration and depth-of-cover work)
Judge Barnes also referred several items (increased public information, addition of odorants, and audible warning system, an expanded warning area) to the Advance Notice of Proposed Rulemaking process (see below) for future consideration.
The Safety 7 plaintiffs did not manage to achieve one of their earliest, most ambitious goals: shutting down Mariner East until Energy Transfer produced a credible plan for dealing with a pipeline emergency. Such a plan still does not exist. We are still told to go half a mile upwind and uphill, on foot, in case of a leak. For many people, in many situations, that advice is impossible to follow. It means that, in case of a serious leak in a built-up area, fatalities are a near certainty.
A powerful legacy. But the legacy of Safety 7 will live on. Many of the issues raised by the Safety 7 case and the Mariner East protests will influence the building of pipelines and the use of fossil fuels for decades to come. Here are some of the consequences so far:
- The PUC’s Advance Notice of Proposed Rulemaking. In large part as a result of the problems with the PUC that the Mariner East controversy revealed, the PUC is reviewing its processes. In March of 2022, the PUC published an “Advance Notice of Proposed Rulemaking” (ANOPR) in which it proposed much tighter regulation of pipeline projects. The ANOPR went through a period of public comment and is now under consideration for modification and adoption by the PUC, so it remains to be seen what the final rules will be.
- The Attorney General’s grand jury. In October of 2021, Attorney General Josh Shapiro revealed the findings of a Grand Jury that had been looking at possible criminal activity by Energy Transfer in its Mariner East project. They found evidence of 48 separate crimes, and these have yet to be prosecuted. As far as I know, the work of the Grand Jury continues to this day. Much of the evidence in this process was provided to the AG’s office by county District Attorneys who, in turn, got it with help from citizen watchdog groups.
- Numerous court cases. In addition to the Grand Jury investigation, the Mariner East project generated numerous other legal cases. Some of these are cases filed by landowners whose property or water supply has suffered harm. Others are class-action suits by investors who weren’t fully informed by Energy Transfer about the risks involved in the project. Some of these cases have been settled, but some remain unresolved. To these could be added the recently-decided Glen Riddle case at the PUC, which showed significant violations by Energy Transfer.
These are just the most obvious, immediate outcomes of the Mariner East controversy. None of this would have happened had dozens of local citizens not spent years fighting Mariner East.
It’s likely that the future work of the DEP will be impacted by the way its failures in enforcement were publicized during Mariner East construction. The PUC’s work certainly will. New projects will get more scrutiny, by the PUC, the DEP, the legal authorities, and the public. It is a new regulatory environment now.
An immediate test of this new environment will be the newly-revealed plan to build an export facility for liquified natural gas (LNG) in Chester, Delaware County. This is not an Energy Transfer project, but the secrecy surrounding the negotiations about it are reminiscent of ET’s approach to Mariner East. The early signs are that there will be very robust public opposition, and some of those involved will be veterans of the fight over Mariner East.
So: is the phase-out of HVL transport via ME1 worth celebrating? Yes, certainly. It is one very positive result of the work of the Safety 7 team and the rest of those who have opposed Mariner East. But at the same time, we need to keep in mind that dangerous HVLs are still flowing through our neighborhoods, and the risk of a catastrophic leak is still very much with us.
That risk will continue until the flow finally stops. What could stop it now? Well, there are several possibilities. Drilling for natural gas could be ended, by law or by economics (these HVLs are byproducts of natural gas production—no natural gas, no HVLs). Single-use plastics could be banned (the HVLs are mostly used for manufacturing plastics). Or—God forbid—there could be a massive accident. I sincerely hope that isn’t what it takes. That’s why we must continue working together to oppose dangerous new pipelines, fracking, and single-use plastics.