On November 17, 2015 Mike Faherty appeared in Washington County Court and presented argument for granting Actions in Equity for two properties. Mike argued that the Judge should deny eminent domain based on: exclusive federal jurisdiction, collateral estoppel and/or the proof of the absence of a need for the natural gas liquids. Mike went on to argue that the Judge must deny the eminent domain request because the Pennsylvania Supreme Court has prohibited use of eminent domain for private enterprise. Sunoco argued that the presented evidence proved Sunoco is a public utility corporation and is thus entitled to use eminent domain power. Mike requested an opinion with an explanation of the analysis. The Honorable Judge stated he would issue his decision as soon as he could. An important opinion is expected in the next few weeks.
Sunoco Pipeline is progressing with further efforts to acquire property rights for Mariner East 2. Some property owners had previously rejected offers to acquire easements. Some of them have recently been provided with new packets of documents which assert easements from long ago provide the rights needed for Mariner East 2. Frequently, the prior easements provide some, but not all, of the needed property rights. Property owners are urged to be cautious and retain experienced legal counsel.
Faherty Law Firm progressed in the litigation of the Actions in Equity against Sunoco Pipeline in Washington County. The property owners have presented varied evidence and arguments in the effort to prove eminent domain was not provided for the Mariner East 2 and should not now be provided. Briefing and reply briefs have been submitted.
On November 3, 2015 Mike Faherty appeared in Huntingdon County Court and presented evidence in support of preliminary objections to the Sunoco Pipeline attempt to use eminent domain power for Mariner East 2. The evidence concluded. The matter will progress to written argument and possibly oral argument.
A Cumberland County Judge has approved eminent domain for Sunoco Pipeline resulting in Sunoco acquisition of easements from three properties for Mariner East 2. The Judge’s reasoning for the Order was indicated in the following footnote:
¹ We feel that a brief explanation of our decision is appropriate in regards to Preliminary Objections 1, 3 and 7. As to the first Preliminary Objection, the Mariner East 2 (ME2) pipeline at issue will provide both loading and off-loading of ethane, propane, liquid petroleum gas and other petroleum products withing the Commonwealth. As such, ME2 provides intrastate service, regulated by the Pennsylvania Public Utility Commission (PUC). Sunoco Pipeline, L.P. is a “[p]ublic utility corporation” as defined at 15 Pa. C.S.A. § 1103. Pennsylvania public utility corporations possess the power of eminent domain. 15 Pa. C.S.A. § 1511. Since ME2 may be regulated by both the Federal Energy Regulatory Commission (FERC) and the PUC, federal preemption is not at issue.
As to the third Preliminary Objection, the Honorable Judge Linebaugh’s decision in Sunoco Pipeline, L.P v. Loper, 2013-SU-4518-05 (C.P. York, February 24, 2014) (reaffirmed March 25, 2014) is inapposite to the case at bar, Loper was decided when Condemnor’s plans for ME2 consisted of the installation of a purely interstate pipeline, crossing Pennsylvania state lines but containing no stations for the off-loading of transported materials. In Loper, Condemnor had argued that FERC provided that the power of eminent domain for a purely interstate pipeline. Since that decision Condemnor has reconfigured ME2 to be both an interstate pipeline as well as an intrastate pipeline subject to PUC regulation.
While we have questions as to the adequacy of the bond, the Condemnees failed to present any evidence as the effect of the taking upon the value of their property. Therefore we have no alternative but to overrule their seventh Preliminary Objection.
The cases are now on appeal to the Pennsylvania Commonwealth Court. Other litigation is progressing in other counties.