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The Clean Air Council’s Environmental Rights Amendment Mischief

DRBC fracking ban - Tom Shepstone ReportsTom Shepstone
Shepstone Management Company, Inc.


Pennsylvania’s Commonwealth Court gave the Mariner East 2 a victory in a recent decision but also opened the door to Environmental Rights Amendment mischief.

Justice is being perverted in Pennsylvania by wealthy special interest foundations manipulating the system. I’m talking about the Heinz Endowments and the William Penn Foundation, two highly political, but supposedly non-political, entities who have their hands in everything; from government to the press.

They operate through shill organizations such as the Delaware Povertykeeper a/k/a Riverkeeper and the Clean Air Council, a trust-funder run outfit with an agenda of stopping all oil and gas development in the Commonwealth. The latter just lost a case brought in the Commonwealth Court but buried deep in the decision is an opening to create future mischief with Pennsylvania’s poorly conceived Environmental Rights Amendment.

Environmental Rights Amendment

Time to make the Clean Air Council and friends pay. Let them send money down the drain defending lawsuits.

The latest Clean Air Council lawsuit regurgitated different versions of some of the same arguments it has repeatedly made against the Mariner East 2 only t9 be repeatedly knocked down. That’s what happened yet again in this instance as Counts I through VI of the latest lawsuit were fairly quickly rejected by the Commonwealth Court with some sarcasm to boot (emphasis added):

In their Complaint, Plaintiffs attempt to open up a new front in the battle to stop Sunoco from exercising the power of eminent domain to construct ME1 and ME2. They commenced their assault in the trial court, although it is undisputed that neither ME1 nor ME2 enters Philadelphia County. Moreover, unlike the property owners in the cases cited above, Plaintiffs do not allege to be “condemnees”—i.e., owners of real property subject to filed declarations of taking under the Eminent Domain Code… Instead, Ms. deMarteleire and Mr. Bomstein allege that their home in Delaware County was, at the time they filed their Complaint, on the proposed route of ME2…

As for its interest, Clean Air Council also identifies as a member Eric Friedman, a resident of the Andover Development in Thornberry Township, Delaware County, and President of the Andover Homeowners’ Association (Andover HOA)… Plaintiffs allege that the path of ME2 would run through open space in the Andover Development and that the Andover HOA and Mr. Friedman oppose any easement to Sunoco to construct ME2… Indeed, Sunoco proceeded under the Eminent Domain Code by filing a declaration of taking in the Court of Common Pleas of Delaware County for purposes of securing an easement to construct a portion of ME2 within the Andover HOA open space. The Andover HOA filed preliminary objections, challenging the declaration. The Delaware County court overruled the preliminary objections, thereby allowing the taking. This Court affirmed.

It’s not hard to see what’s going on here. The Clean Air Council is repackaging claims for the sole purpose of delaying and harassing Mariner East. As shills for their Heinz and William Penn Foundation special interest funders, they know what’s expected of them; to use the courts to obfuscate, delay and otherwise frustrate any pipeline development that would support Pennsylvania natural gas development.

This is, by any common sense definition, a frivolous nuisance lawsuit that should have subject to the payment of huge bonds and heavy penalties in the event of the inevitable loss in court. Mariner East and the pipeline industry are going to keep getting beat up with this stuff if they don’t stop playing along as the defense and take the offense by suing the Clean Air Council and its benefactors.

Environmental Rights Amendment

The “open space along the highway that the Andover Homeowners Association says is threatened by the pipeline. Click to watch the video showing how ludicrous the claims are.

Notice, too, how the Clean Air Council is stretching the definition of what is a legitimate party for purposes of a lawsuit to include members of groups who own open space and suggesting simply being a member of such a group and opposing an easement is enough to qualify. Courts have become all too willing to grant party status to such loosely connected interests, thus transferring political disagreements to the courts for resolution. It’s a scandal. It’s also scandal that all a non-profit has to do claim a legal interest is to assert their “mission is to protect everyone’s right to breathe clean air.” Well, my mission is to protect everyone’s right to energy. So, do I get to sue the Clean Air Council?

The real problem with this lawsuit and the Commonwealth Court’s decision is something else, though. It has to do with Pennsylvania’s Environmental Rights Amendment, which was adopted decades ago as a feel good measure but has been exploited by the Delaware Povertykeeper, the Clean Air Council’s companion shill group with whom it seems to regularly collude in advancing the anti-development agenda, Count VII of the latter’s complaint in this instance attempts to bring the Amendment into the argument and, unfortunately, the door was opened a bit.

Here’s what the Commonwealth Court said about that (emphasis added):

In Count VII of the Complaint, Plaintiffs allege that Sunoco has fiduciary duties as a trustee under the Environmental Rights Amendment to consider the impact its construction of the Mariner East Project would have on Pennsylvania’s public natural resources. Plaintiffs further allege that Sunoco has failed to perform this assessment. Accordingly, Plaintiffs seek a declaration that Sunoco may not pursue eminent domain with respect to either ME1 or ME2 “until it demonstrates to the PUC that its pipeline project comports with the Environmental Rights Amendment.” 

…in terms of actionable rights and duties, the Environmental Rights Amendment does two things: (1) it limits the power of “the state” to act in derogation of protected environmental interests; and (2) it obligates “the Commonwealth” to act as a trustee of Pennsylvania’s public natural resources. 

One of the questions that the trial court certified and this Court accepted goes to the trial court’s subject matter jurisdiction over Plaintiffs’ Environmental Rights Amendment claim. In light of the foregoing, the Environmental Rights Amendment does not impose duties or obligations on private parties… Plaintiffs contend, however, that as a public utility exercising eminent domain powers, Sunoco is not acting purely as a private party. Instead, it is exerting “governmental powers.” In essence then Plaintiffs contend that Sunoco, acting under authority conferred by the PUC, is acting as “the Commonwealth government.”

…as Plaintiffs’ Environmental Rights Amendment claim hinges on the theory that Sunoco is exercising the powers of the Commonwealth government as a public utility, this Court, and not the trial court, has exclusive original jurisdiction over the claim, and the trial court, on remand, should transfer this matter to this Court’s original jurisdiction pursuant to Section 5103(a) of the Judicial Code… This is not to say that the Court has accepted Plaintiffs theory of liability. Rather, we reserve for subsequent proceedings the merits question of whether a public utility, such as Sunoco, exercising the power of eminent domain, acts as the Commonwealth government and thus has independent duties or obligations to the people of Pennsylvania under the Environmental Rights Amendment

On the question of standing to bring a claim under the Environmental Rights Amendment, we look to the Pennsylvania Supreme Court’s decision in Robinson Township v. Commonwealth... There, the Pennsylvania Supreme Court held that property owners within a zoning district had standing to bring an Environmental Rights Amendment claim based upon “the serious risk of alteration in the physical nature of their respective political subdivisions and the components of their surrounding environment.” …Here, even if they are not actual condemnees, Ms. deMarteleire and Mr. Bomstein allege in the Complaint that the Mariner East Project is either on or in close proximity to their property. They assert that the project poses an increased risk of spills or explosions that would impair their property… Consistent with the Pennsylvania Supreme Court’s decision in Robinson Twp. II, this Court is satisfied that Ms. deMarteleire and Mr. Bomstein have asserted an interest sufficient to support their standing to assert their Environmental Rights Amendment claim against Sunoco. Concomitantly, Clean Air Council also has standing. Robinson Twp. II, 83 A.3d at 922 (“Under Pennsylvania law, an association has standing as representative of its members to bring a cause of action even in the absence of injury to itself, if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the action challenged.”).

It’s nothing less than outrageous that such tangential connections to real interests in property could be possibly qualify one to sue over eminent domain issues, but this the creeping advancement of the rights of special interests disrupters with environmental facades that we’re seeing in the courts. The door, which was shut rather tightly in a previous Mariner East case brought by the Delaware Povertykeeper, has been pried open again just a bit, which, of course, was the reason for bringing the lawsuit and continuing the relentless assault in the courts.

Bear in mind, also, that while the Commonwealth Court could, based on the Delaware Povertykeeper case, reasonably be expected to rule in a similar fashion again, that is anything but certain as this is a new front in the assault on the law. Moreover, the end game is the get one of these cases up to the much more political Pennsylvania Supreme Court where the Clean Air Commissary, Delaware Povertykeeper and other Heinz and William Penn  Foundation shills are better able to curry favor. That’s the real aim here and the real risk.

So, hold the applause for this decision. There’s still very real risk and it’s not just about the Mariner East. It’s about every intrastate pipeline and it’s way past time for the industry to take the offense in suing the shills and their financial enablers. They’re vulnerable on several fronts, including tax-exemption and nuisance lawsuits. Stop playing it safe just to survive and go for the jugular, dammit. Make them pay!


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One thought on “The Clean Air Council’s Environmental Rights Amendment Mischief

  1. Tom, thanks for the update. By using the frivolous and bad faith law suit strategy, the enviros are revealing themselves to be far more transactional and petty than morally superior and scientific.

    The legal system needs to be able to punish these frivolous and bad faith adherents, so they can be prevented from adversely effecting the economic development of rural and urban America.

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