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Pennsylvania Eminent Domain Blog

Sunoco Eminent Domain Order

November 18th, 2015 | by Mike Faherty

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.