Chester County Commissioners Fail in Effort to Stop Mariner East

Mariner East OpponentsKurt Knaus

Pennsylvania Energy Infrastructure Alliance

Pennsylvania’s Commonwealth Court has rejected a Chester County Commissioners request for an injunction to halt completion of the Mariner East pipeline.

Pennsylvania’s Commonwealth Court has ruled against Chester County Commissioners and their attempt to secure an injunction to stop construction of the Mariner East pipeline project. The petition fought to curtail open trench construction rather than horizontal directional drilling on two easements the county gave to the pipeline builder.

Chester County

The modifications essentially go from horizontal directional drills to conventional bore or open trench, which would alleviate some of the issues experienced during construction. These modifications need to be made for environmental safety based on new realities in the field. The project has been highly regulated and use of these approved modifications will ensure that the pipeline is built with the least amount of harm to the environment.

The decision is one more stamp of approval on this legally permitted project. Courts continue to side with the safe, responsible development of Mariner East because the entire project has been subject to strict oversight and regulations. With this approval in place, another piece of Mariner East can swiftly and safely move toward completion.

Editor’s Note: The substitution of NIMBY pandering for leadership in Chester County comes to a screeching halt in this instance, thank goodness. The problem, though is that is the modus operandi of politicians in easily demagogued urban and suburban areas; kick the decision over to the courts to do justice while catering to the handful of noisy opponents. It’s a terrible trend that tends to get ever worse as an area urbanizes, but at least the courts acted properly in this instance.

Here is some of the decision (emphasis added):

After a thorough review of the filings and upon consideration of the parties’ excellent oral arguments, this Court concludes that Commissioners fell short of satisfying the stringent requirements for the issuance of an injunction pending appeal. Specifically, the Court finds that Commissioners failed to establish the first and second prongs of the Tri-State Asphalt test, i.e., that Commissioners made a strong showing of a likelihood of success on the merits, and that absent an injunction, they would suffer irreparable injury…

Accordingly, to prevail on the merits of the instant case, Commissioners are required to prove that the trial court lacked “any apparently reasonable grounds” to deny the preliminary injunction. At this preliminary stage, Commissioners have not shown a strong likelihood that they will succeed on that endeavor. Indeed, the trial court noted three separate rationales for denying Commissioners’ preliminary injunction on the basis of lack of subject matter jurisdiction, and Commissioners have not strongly rebutted all three of these proffered rationales. Accordingly, this Court concludes Commissioners have not adequately satisfied the first Tri-State Asphalt factor.

Turning to irreparable injury, this Court likewise concludes that Commissioners have not made their case. “An irreparable injury causes damage which can be estimated only by conjecture and not by an accurate pecuniary standard.” Carlini v. Highmark, 756 A.2d 1182 (Pa. Cmwlth. 2000). While Commissioners maintain that Sunoco’s use of the open trench method without County consent constitutes a trespass, the Court is not persuaded this alone proves irreparable injury. Notably, Commissioners have not established that the real property at issue will be incapable of reclamation as a result of Sunoco’ s use of the alternate installation method, which was approved the DEP in 2018. Moreover, to the extent the County argues Sunoco is operating outside of the agreed upon terms of the Easements, any damage to County property caused by such action is compensable

In sum, Commissioners have failed to establish the required criteria to justify the issuance of an injunction pending appeal. Accordingly, Commissioners’ Emergency Application is denied.

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