On April 30, Commonwealth Court issued an opinion in Clean Air Council v. Sunoco (Mariner East 2 Pipeline) agreeing to hear arguments on whether the Environmental Rights Amendment and its public trustee obligation as outlined by the PA Supreme Court in PA Environmental Defense Foundation v. Commonwealth applies to the pipeline project's eminent domain actions and requires Sunoco to consider the environmental impacts of the project.

The opinion sided with the Philadelphia trial court in throwing out other challenges to Mariner East 2 Pipeline eminent domain actions.

While the Court noted the Environmental Rights Amendment does not impose duties or obligations on private parties, they recognized the plaintiffs’ argument that Sunoco, in exercising eminent domain powers, was not acting purely as a private party.  Instead, plaintiffs said it was exerting "governmental powers."

The plaintiffs contented Sunoco, acting under authority conferred by the Public Utility Commission, was acting as the Commonwealth government in taking eminent domain actions related to the Mariner East 2 Pipeline.

The Court noted, in the PEDF PA Supreme Court opinion, “In terms of the trustee’s obligation, the Supreme Court offered the following relevant elaboration:  ‘Trustee obligations are not vested exclusively in any single branch of Pennsylvania’s government, and instead all agencies and entities of the Commonwealth government, both statewide and local, have a fiduciary duty to act toward the corpus with prudence, loyalty, and impartiality. Id. at 931 n.23.’

“Accordingly, in terms of actionable rights and 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.”

"Accordingly, 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, 42 Pa. C.S. § 5103(a) (relating to transfers of erroneously filed matters)."

The Court was careful to say, "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."

Click Here for a copy of the opinion.

NewsClips:

Hurdle: Sunoco: No Alternative To Building Mariner East 2 In Chester County

Battle Against Mariner East 2 Pipeline Is David v. Goliath, Lawmaker Says

Related Stories:

PA Environmental Defense Foundation Files Motion To Protect $383 Million In State Forest Drilling Payments

Delaware RiverKeeper Files Multiple Legal Challenges With FERC Over PennEast Pipeline

[Posted: May 9, 2018]

5/14/2018