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Delaware Riverkeeper Attempt to Apply ERA to Pipelines Shot Down

natural gas boats - Tom Shepstone ReportsTom Shepstone
Shepstone Management Company, Inc.


The Delaware Riverkeeper used West Goshen Township as leverage in an attempt to apply Pennsylvania’s Environmental Rights Amendment to pipelines. It failed.

The Delaware Riverkeeper (a/k/a “Povertykeeper”) is, with the financial support of the William Penn Foundation, on a mission to expand the reach of the Pennsylvania’s Environmental Rights Amendment (ERA) to every imaginable use in its campaign against fossil fuels and natural gas development. Happily, it just lost a big battle on that front (for now) in Pennsylvania’s Commonwealth Court. Notwithstanding the win, it’s time the industry played offense, though.

The Delaware River, the protection of which was once the supposed focus of the Riverkeeper organization, has been shoved to the back as Maya van Rossum has set her eyes on the real prize; law that trumps all other law and is enforceable by her through lawsuits funded by the elitist special interests for whom she shills. She desperately wants to be the individual who makes the ERA the ultimate weapon—the MOAB—in the battle to stop anything and everything. With Pennsylvania’s Supreme Court now in the hands of a very political—power is all that matters—set of Democrats likely to be sympathetic to her views, she smells the potential of a victory down the road that will expand on the Robinson decision.

MOAB, “Mother of All Bombs”

The Robinson decision striking down most of Act 13 with regard to limits on municipal regulation of natural gas development was made with the support of a Republican Chief Justice blinded by a desire for an environmental legacy at the expense of law and reason. It elevated the importance of the ERA and Maya sought, in the case just decided by the Commonwealth Court regarding the Mariner East 2, to further expand its reach to cover pipelines. She failed. Here’s the Commonwealth Court decision and, as usual, I’ve highlighted the most important parts, which include the following (emphasis added):

In 2012, Sunoco announced its intent to develop an integrated pipeline system for transporting petroleum products and natural gas liquids (NGLs) such as propane, ethane, and butane from the Marcellus and Utica Shales in Pennsylvania, West Virginia, and Ohio to the Marcus Hook Industrial Complex (MHIC) and points in between.  Sunoco’s various filings described the overall goal of the Mariner East Project as an integrated pipeline system to move NGLs from the Marcellus and Utica Shales through and within the Commonwealth, and to provide take away capacity for the Marcellus and Utica Shale plays and the flexibility to reach various commercial markets, using pipeline and terminal infrastructure within the Commonwealth.

The Mariner East Project has two phases. The first phase, referred to as Mariner East 1 (ME1), was completed and utilized Sunoco’s existing pipeline infrastructure, bolstered by a 51-mile extension from Houston, in Washington County, to Delmont, in Westmoreland County, to ship 70,000 barrels per day of NGLs from the Marcellus Shale basin to the MHIC. Sunoco has begun work on the second phase of the Mariner East Project, known as ME2. Unlike ME1, which used both existing and new pipelines, ME2 requires construction of a new 351-mile pipeline largely tracing the ME1 pipeline route, with origin points in West Virginia, Ohio, and Pennsylvania. With the exception of some valves, ME2 will be below ground level.

Significant for further discussion, new ME2 construction will be parallel to and mostly within the existing right of way of the ME1 pipeline

Based on our recent en banc decision in Sunoco I, we hold that Sunoco is regulated as a public utility by the PUC and is a public utility corporation.  In addition, we hold that Sunoco is providing intrastate pipeline transportation services regulated by the PUC.  We reject Plaintiffs’ arguments to the contrary…

Plaintiffs argue that the ME2 pipeline is not properly located because parts of it are proposed for incompatible residential zones where permission for such use has recently been withdrawn.  Plaintiffs’ Compl. at ¶11 (“Under the [2014] Ordinance a public utility facility use is permitted by conditional use, and no longer permitted by right in residential districts.”).  Plaintiffs also refer to the “hazardous” nature of the petroleum products involved in the pipeline transportation services, e.g., Appellants’ Br. at 4; Reply Br. of Appellants at 21, protection of public natural resources generally, recent damage to drinking water supplies in particular, Reply Br. of Appellants at 12, and detrimental impacts on health, safety, welfare and property values.  Id. at 13.  We view these assertions as implicating the reasonableness and safety of the pipeline transportation services or facilities, matters committed to the expertise of the PUC by express statutory language.  66 Pa. C.S. §1505

Most recently, and perhaps most importantly, Plaintiffs contend, the Pennsylvania Supreme Court set forth the clear limitations on the General Assembly’s authority “to remove a political subdivision’s implicitly necessary authority to carry into effect its constitutional duties.”  Robinson Twp. v. Commonwealth, 83 A.3d 901, 977 (Pa. 2013) (Robinson Twp. II); see also Pa. Envtl. Def. Found. v. Commonwealth, 161 A.3d 911, 931 (Pa. 2017) (PEDF)…

Significantly, Plaintiffs maintain, the trustee obligations set forth in the ERA are not vested exclusively in any single branch of Pennsylvania government. PEDF; Robinson Twp. II.  Instead all Commonwealth agencies and entities have a fiduciary duty to act toward the corpus with prudence, loyalty and impartiality. PEDF; Robinson Twp. II.  “This includes local governments.”  Robinson Twp. II, 83 A.3d at 956-57.  Plaintiffs contend municipalities have those powers expressly granted to them by the Pennsylvania Constitution or by the General Assembly, and other authority implicitly necessary to carry into effect those express powers.  Id. They assert that, while the General Assembly has the authority to alter or remove powers granted and obligations imposed on the municipality by statute, “constitutional commands regarding municipalities’ obligations and duties to their citizens cannot be abrogated by statute.”  Id. at 977.  Plaintiffs argue the General Assembly has no authority to remove a political subdivision’s implicitly necessary authority to carry into effect its constitutional duties.  Id…

Plaintiffs assert that, in Pennsylvania, protection of environmental values “is a quintessential local issue and must be tailored to local conditions.”  Id. at 979.  “[A] new regulatory regime permitting industrial uses as a matter of right in every type of pre-existing zoning district is incapable of conserving or maintaining the constitutionally protected aspects of the public environment and of a certain quality of life.”  Id.  Thus, when a local government is required to permit industrial uses in all zoning districts “some properties and communities will carry much heavier environmental habitability burdens than others …. This disparate effect is irreconcilable with the express command that the trustee manage the corpus of the trust for the benefit of ‘all the people.’”  Id. at 980 (quoting PA. CONST. art I, § 27). Plaintiffs argue that, placing uses in zoning districts not designated for those types of uses, i.e. “spot uses,” disrupts the rational zoning scheme as a whole.  Robinson Twp. I, 52 A.3d at 484 n.21.

Plaintiffs contend that, by finding that the zoning ordinance regulating the location of HVL pipelines in residential districts is preempted by the PUC’s authority, the trial court did precisely what the Supreme Court prohibited in Robinson Township II.  It allowed the General Assembly to remove the Township’s ability to carry out its constitutionally mandated, and quintessentially local, duties as a trustee under the ERA.  Plaintiffs argue this allowed the General Assembly to transgress its delegated police powers, which are limited by the ERA.  Further, it allowed Sunoco, under the guise of the PUC, to place an industrial use as a matter of right in every type of pre-existing zoning district, a scheme that is incapable of conserving or maintaining the constitutionally protected aspects of the public environment and of a certain quality of life.  It also allowed some properties to carry a much heavier environmental habitability burden than others, undermining the Township’s ability as trustee to manage the corpus of the trust for the benefit of “all the people.”  PA. CONST. art. I, §27.  They argue such a clear violation of the ERA cannot stand…

There are three generally recognized forms of preemption: (1) express or explicit preemption, where the statute includes a preemption clause, the language of which specifically bars local authorities from acting on a specific subject matter; (2) conflict preemption, where the local enactment irreconcilably conflicts with or stands as an obstacle to the execution of the full purposes of the statute; and (3) field preemption, where analysis of the entire statute reveals the General Assembly’s implicit intent to occupy the field completely and to permit no local enactments…

In Duquense Light Co. v. Upper St. Clair Township, our Supreme Court held that field preemption precluded the application of a township zoning ordinance to a public utility…

The Supreme Court added its own discussion on the policy driving its holding in favor of the public utility:

Any other conclusion than that reached by the chancellor would render the [PUC] powerless to regulate the functioning of an electric service company if in so doing the [PUC] contravened any regulation or order of a local zoning authority.  If the power of the municipality were held paramount, the [PUC] could not compel the utility to provide adequate service or in anywise control the expansion or extension of the utility’s facilities if an order of the [PUC] conflicted with action taken by any political subdivision of the State.  This would mean the complete negation of the powers of regulation and control specifically given as a matter of public policy to the [PUC] in the interest of state-wide public welfare

Following our careful review of the Public Utility Code, and in particular the current iterations of the provisions cited by our Supreme Court in County of Chester, we conclude that the General Assembly intended the PUC to occupy the field of public utility regulation, in the absence of an express grant of authority to the contrary…

After extensively evaluating the statutory terms, our Supreme Court in Duquesne Light Co. v. Upper St. Clair Township, and later in County of Chester, identified an over-arching policy embedded in our public utilities statutes: to commit the regulation of public utility facilities to a state-wide commission, the PUC, because the rendition of efficient service to the public transcends the legitimate objectives of any one of the political subdivisions of the Commonwealth.  Duquense Light Co. v. Upper St. Clair Township, 105 A.2d at 293; accord Cnty. of Chester, 218 A.2d at 333 (“If each county was to pronounce its own regulation and control over electric wires, pipe lines and oil lines, the conveyors of power and fuel could become so twisted and knotted as to affect adversely the welfare of the entire state.”)…

The practical conflict is even more apparent with a careful review of the facts here. Plaintiffs concede that the proposed route of the ME2 pipeline through the Township “follows an existing [Sunoco] hazardous liquids pipeline ….” Compl. ¶7. In Sunoco I, it was revealed that the ME2 pipeline will be “paralleling and mostly within the existing right of way of the [ME1] pipeline.” Id. at 1008 (emphasis added). Thus, the 2014 Ordinance, zoning pipelines out of residential zones, conflicts with full use of a pre-existing pipeline right of way.

We reject Plaintiffs’ arguments that there is no conflict between the 2014 Ordinance and the Public Utility Code: a) because the PUC does not have any regulations governing pipeline location; b) because the PUC concedes it lacks authority over the siting of hazardous liquid pipelines; and, c) because the PUC lacks procedural machinery to adjudicate their rights.

First, while it may be true that the PUC has no regulations covering pipeline siting, this is irrelevant. The PUC exercises its authority in several ways, including regulations and orders. Regardless of whether there are PUC regulations governing the location of pipelines, there are numerous PUC orders governing the ME2 pipeline, as discussed in such detail in Sunoco I that further review is unnecessary.

There is no express preemption provision in either the Public Utility Code or in the MPC.  Nevertheless, our prior discussion explains the long-standing public policy embedded in the Public Utility Code and its predecessor statutes: public utilities are to be regulated by an agency of the Commonwealth with state-wide jurisdiction rather than a myriad of local governments with different regulations…

For the following reasons, we decline to embrace Plaintiffs’ arguments based on the Township’s constitutional duties to protect public natural resources, as embodied in the ERA and discussed recently by our Supreme Court in Robinson Township II and PEDF.

First and foremost, the cases relied upon by Plaintiffs do not deal with public utility services and facilities regulated by the PUC, and they are distinguishable for this important reason. We are not persuaded that the cases signify an intent to protect public natural resources trumps all other legal concerns raised by every type of party under all circumstances. Plaintiffs, however, offer no principled contours for their broad argument.

Second, Plaintiffs do not explain how the ERA, Article I, Section 27 of the Pennsylvania Constitution, adopted in 1971, impacts long-standing, pre-existing law involving regulation of public utilities, without expressly referring to the topic.  Similarly, Plaintiffs do not explain how the 2014 Ordinance impacts long-standing, pre-existing law involving regulation of public utilities…

Third, Plaintiffs do not explain how the 2014 Ordinance furthers the Township’s ERA trustee duties and relates to conserving public natural resources.  This is especially true where, as here, the pipeline in question will be placed in or near a pre-existing pipeline right of way and parallel to a pre-existing pipeline

Plaintiffs argue it is irrational to have incompatible land uses in a zone that was established to achieve a non-industrial character and non-industrial development and conservation goals.  Robinson Twp. I; see also Robinson Twp. II (Baer, J., concurring).  Such incompatible uses upset the established expectations of those who live there, such as investment decisions regarding businesses and homes on the assurance that the zoning district will only be developed for compatible uses. See Robinson Twp. II (Baer, J., concurring).  Plaintiffs assert that Sunoco’s placement of an HVL pipeline in residential districts renders the zoning districts irrational and unconstitutional…

Plaintiffs’ incompatible-uses-in-residential-zones argument is flawed, for several reasons..

It is the proverbial square peg in the round hole…

Moreover, there are factual problems. According to Plaintiffs’ complaint, public utility facilities were until recently permitted by right in residential zones of the Township. See Compl. at ¶11 (“Under the [2014] Ordinance a public utility facility use is permitted by conditional use, and no longer permitted by right in residential districts.”). In any event, there is a pre-existing pipeline in the Township. See Compl. at ¶7. As revealed in Sunoco I, most of the new ME2 pipeline will be parallel to and within the right-of-way of the pre-existing pipeline. Sunoco I, 143 A.3d at 1009. These facts are at odds with Plaintiffs’ general assertions of incompatible uses.

Further, as to expectations of property owners, the onset of regulation by the 2014 Ordinance post-dates the expectations of the public utility when it acquired the right of way and constructed the pre-existing pipeline. Also, it is difficult to assess the “pipeline-free” expectations of homeowners in the residential zones in light of the pre-existing pipeline and right of way.  Although Plaintiffs argue about established expectations of those living in the residential zones, Appellants’ Br. at 26, Plaintiffs Casey and Grote do not aver that they purchased their properties after enactment of the 2014 Ordinance, that they somehow relied upon the 2014 Ordinance, or that they expected no public utility facility in their residential zones.  These factual circumstances raise questions of the viability of Plaintiffs’ substantive due process claim.

It’s a pretty clear win and we can all be thankful for that. Notwithstanding this, the decision suggests a wholly different strategy on the part of the industry is urgently needed. Why? Well, consider, these points:

  1. A huge factor in the decision was clearly the fact ME2 parallels ME1, an existing pipeline. Would it have been the same in the case of a new pipeline that didn’t follow such a route? Probably, but it would have been less clear and left wiggle room for sympathetic judges.
  2. There was a dissenter from the decision and another judge who both concurred and dissented. Judges Patricia McCollough and P. Kevin Brobson, both Republicans, felt the Plaintiffs were entitled to request relief as to route location and suggested the matter should have been directed to the PUC to consider. They had obvious sympathy for ME2 opponents. The Povertykeeper hadn’t asked for that, though, because they’re only interested in stopping pipelines, not rerouting them. What if they had asked? More delay, more confusion, more dilution of the pipeline authority, would have been the likely outcomes.
  3. This decision, for the Delaware Riverkeeper, is nothing more than a stepping stone to Pennsylvania’s Supreme Court, where Maya knows there’s a more friendly group of judges. While the Commonwealth Court’s opinion in this case is a strong one, the Supreme Court has already taken other cases on the ERA issue where there were equally strong opinions from the lower court. The PA Supremes” recent venture into the politics of gerrymandering six years after districting (whatever the merits) indicates it has has little respect for precedent and is looking to do political things.
  4. The Delaware Riverkeeper has a bottomless supply of money from the William Penn Foundation to continue the assaults on the industry and chip, chip away with precedent and gradually open the door to wholesale changes in the way pipelines are regulated. They have a long-term strategy that is as well-funded as it could be.
  5. The Delaware Riverkeeper is on the offense at all times, while the industry is on the defense at all times. This a self-evident path to disaster if the industry doesn’t pursue offense.

What can be done? Well, perhaps the industry might start by using the obviously very competent lawyers who handled this case to launch lawsuits challenging the Delaware Riverkeeper’s and, especially, the William Penn Foundation’s tax exemptions.

Sue the bastards for violating every tax rule imaginable and ask for damages for what they’ve cost pipeline companies with frivolous delays. Start pushing for legislation to strip 501c3 non-profits of any rights to lobby and demand they create 501c4 organizations (donations to which are not tax-exempt) to do the politics with no mingling of funds allowed whatsoever.

This is what must be done! Go on offense dammit!

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2 thoughts on “Delaware Riverkeeper Attempt to Apply ERA to Pipelines Shot Down

  1. Damn right, go on the offense! Even if the strategy is expensive, it is the only rational strategy. The politicians are so blinded by the environmental zealots, they can’t see the forest from the trees. Can’t they see (or refuse to see) that their constituents will pay the price of higher energy costs? Can’t they envision that there will probably be more pollution as power companies revert to coal because they can’t get access to clean natural gas? There is not one reasonable person that can assert that in the northeast United States that everything can be solved with solar and wind. The northeast has the highest population density of any region in the U.S.(read energy usage). I’ve lived in the northeast. The sun does not shine that much! Look at the percentages of renewables now and assert that somehow in the near future that miraculously it can all be transformed into wind and solar utopia. Ridiculous and scandalous!

  2. +1000 Mr. Shepstone.

    Virtually all companies in the hydrocarbon industry are engaged in an existential war – not of their choosing – and either recognize this, fully engage and destroy their enemies … or wind up being destroyed.

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