A recent Commonwealth Court decision reaffirmed the opportunity for a property valuation witness to rely upon hearsay evidence in forming an opinion of property value. In re Condemnation by Turnpike Commission, No. 1131 C.D. 2017 (April 10,2018) a property owner appraiser relied upon an affidavit of a neighbor about the property owners ability to obtain a driveway easement. The affadavit was relied upon in support of a highest or best use for hotel development. The decision cited 26 Pa. C.S.A 703 and the Eminent Domain Code provision which allows an expert to rely on “facts or data” which the expert did not personally observe. Use of this particular rule for eminent domain evidence can be very beneficial in production of evidence of full just compensation.
The Penn East pipeline across northern Pennsylvania and northern New Jersey continues with FERC approval and multiple eminent domain challenges. Recently another challenge was added via a New Jersey request that FERC reconsider the pipeline impact. Although unlikely, the effort could derail the pipeline in both states.
New Jersey asks appeals court to review FERC’s approval of PennEast pipeline
FERC erred in awarding Public Convenience and Necessity certificate, AG says
One of the first acts of Gurbir Grewal when he became New Jersey’s attorney general was to ask the Federal Energy Regulatory Commission to rehear its decision to certify a crucial aspect of the controversial PennEast pipeline; the proposed pipeline would carry natural gas from Pennsylvania to Mercer County. Monday, Grewal filed a petition with a federal appeals court that challenges FERC on that certification.
Grewal filed a petition yesterday with the District of Columbia Circuit Court, asking it to hear the state’s arguments that the Federal Energy Regulatory Commission (FERC) erred when it issued a Certificate of Public Convenience and Necessity to the pipeline project in January.
In February, Grewal asked FERC to stay the certificate and rehear the case, in a motion that was seen as a precursor to the legal challenge that it has now made.
FERC responded to the rehearing request with a “tolling order,” a mechanism that in theory gives it more time to consider the request but which in practice means that the agency takes no action for about six months and then summarily dismisses the request, critics say.
Other groups seeking a rehearing include three New Jersey municipalities, three New Jersey state lawmakers, a Pennsylvania township, and activist groups in both states. If constructed, the $1 billion pipeline would carry natural gas about 120 miles from Luzerne County, Pa. to Mercer County, NJ.
NJ says FERC doesn’t have authority
In the latest motion, New Jersey argued that FERC does not have the authority to issue a tolling order when a rehearing request is combined with any other request such as a stay.
The state argues that FERC was wrong to give PennEast the certificate that has allowed it to file eminent domain suits against some 150 New Jersey landowners who have refused its offers of compensation for building the pipeline on their land.
The state has also declined the company’s offers of compensation for easements on several parcels of state-protected land in Hunterdon County, totaling about 1,300 acres.
Since many landowners have denied the company access to their land to survey for the pipeline, the company lacks knowledge about environmental impacts on about two-thirds of the route, the state said in its motion to FERC in February. Even so, FERC’s certificate allows condemnation — the process by which land is taken via eminent domain — for all the route, the motion said.
“Enabling PennEast to condemn perpetual easements before knowing whether the route must be shifted to avoid environmental impacts undoes the preserved nature of the land even if the pipeline will ultimately never cross that land due to route changes,” the state said in February.
‘Arbitrary and capricious’
In the new petition, the state calls FERC’s certificate “arbitrary and capricious” because it lacked environmental information, improperly relied on PennEast’s contracts with its affiliates to demonstrate public need for the line and tried to minimize or avoid environmental impacts rather than mitigating them, as required under federal law.
The motion is a rare or perhaps unprecedented example of a state challenging FERC on its certificate of approval in a pipeline case, said Jennifer Danis, an attorney who represents the New Jersey Conservation Foundation, a leading opponent of the pipeline. “I don’t know of another state that has taken a broad legal challenge at a FERC certificate in a pipeline case,” Danis said.
FERC is likely to respond by asking the court to dismiss the petition, and the real question is whether the court agrees to hear the case on the merits, Danis said.
Tom Gilbert, campaign director for the NJCF, said the motion challenges FERC’s “flawed” process and its findings. “PennEast never should have been approved in the first place,” he said in a statement.
FERC spokewoman Tamara Young-Allen said the agency can’t comment on matters that are subject to a final commission order.
PennEast spokeswoman Pat Kornick said FERC’s approval of the project is consistent with the agency’s longstanding policies and that the company is confident that the courts will uphold the review process. The company says it expects to begin construction this year and for the pipeline to start operating in 2019.
In a separate case, a federal judge in Trenton is expected to rule shortly on whether PennEast can use eminent domain to take land from about 130 landowners along the New Jersey portion of the pipeline route.
FERC’s approval of PennEast was a blow to opponents but the project still needs permits from a number of agencies including the New Jersey Department of Environmental Protection and the Delaware River Basin Commission.
Written by: John Hurdle | StateImpact Pennsylvania
Photo caption: Part of the proposed PennEast pipeline could run through this stretch of land in Bucks County, Pa. New Jersey has taken a stronger position toward the pipeline. The Attorney General’s office has filed a federal appeals case to try to halt construction while Pennsylvania has approved water crossing permits.
Environmental groups were able to convince a Federal Court to stop construction while environmental concerns were considered. The U.S. Court of Appeals for the District of Columbia ended the stay. This allows construction to be restarted.
Pipeline construction to resume as federal court dissolves stay
Construction of the Atlantic Sunrise natural gas pipeline will resume today.
That was the comment from Williams Partners on Wednesday night after the U.S. Court of Appeals for the District of Columbia dissolved the administrative stay it had issued Monday.
The court’s one-page order states the seven environmental groups that wanted to stop the pipeline project had not satisfied the stringent requirements for a stay.
A three-judge panel had issued it saying the court needed time to review the environmental organizations’ contention the Federal Energy Regulatory Commission’s review of the project did not meet the standard for evaluating greenhouse-gas emissions.
The groups, which included Concerned Citizens of Lebanon County, Lancaster Against Pipelines, Lebanon Pipe Awareness and the Sierra Club also claimed completion of the pipeline would encourage more drilling for natural gas.
“We are pleased the court has lifted the administrative stay,” Williams said in a statement.
“We will promptly resume construction activities on this important pipeline project, which will leverage existing energy infrastructure to deliver economic growth and help millions of Americans gain access to affordable Pennsylvania-produced clean-burning natural gas.
“Thousands of workers in Pennsylvania will be back on the job (today).” The stay had stopped all construction activity on the pipeline in Pennsylvania.
Issues raised in motions to dismiss the stay were factors in the court’s decision, to dissolve it, the ruling stated.
FERC was among those opposing the stay, claiming it was overbroad.
Williams, based in Tulsa, Oklahoma, contended the stay was unwarranted because FERC undertook a nearly four-year extensive review of the project before issuing a certificate of public convenience in February. Williams’ subsidy, Transcontinental Gas Pipeline, then obtained the required permits from the state Department of Environmental Protection and began construction of 186 miles of pipeline in Pennsylvania on Sept. 17.
The nearly $3 billion Atlantic Sunrise project will increase the amount of Marcellus Shale gas that can be transported into the South. The pipeline will cross 10 Pennsylvania counties including Lancaster and Lebanon.
The project includes revising piping in six compressor stations in Maryland, Virginia and North Carolina to permit natural gas to flow in both directions. Earlier Wednesday, the appeals court clarified its stay order saying it applied to construction activities only in Pennsylvania.
Written by: John Beauge | PennLive
Photo captyion: Lancaster Against Pipelines protesters block a construction entrance near Columbia, Lancaster County, last month. 2017 PennLive file photo
Property owners along the route of the Mariner East 2 construction would be wise to inspect their property following multiple construction spills. The following news story discusses the spills. The referenced list of 49 incidents is also included. View the list here. Construction spills could result in DEP fines. They could also result in Sunoco Pipeline liability for property harm beyond acquired property rights.
DEP issues few violations, one fine for Sunoco’s pipeline construction spills
Pennsylvania’s Department of Environmental Protection has issued four Notices of Violation, one consent order and one fine to Sunoco Pipeline for dozens of drilling mud spills that occurred along the length of the Mariner East 2 pipeline construction project. The DEP released a statement on Friday describing its efforts to manage Sunoco’s construction of the 350-mile long pipeline where drilling has caused water-contamination incidents in recent weeks.
The agency fined Sunoco $87,600 and issued a consent decree on June 27 for 13 separate drilling mud spills that occurred between May and June in Cumberland County. The Notices of Violations report 552,000 gallons of bentonite mud spilled into LeTort Spring Run, an Exceptional Value wetland in Cumberland County. Exceptional Value waterways are those that are clean enough to support fish and wildlife, such as wild trout streams, or those that have high value recreational use.
In response to a Notice of Violation, Sunoco said on June 7 that it had “contained, captured and recirculated” the fluid back to the drill rig, and that it was not “discharged throughout the wetland.”
But the consent decree, dated about three weeks later on June 27 reports that Sunoco had not yet remediated the problem, and had shut down operations at DEP’s request on June 9. Up until Friday’s release, no public notification had been made of this incident.
Sunoco spokesman Jeff Shields said there was a release of 1,500-2,000 gallons into the LeTort wetland at the Cumberland County site but the company had recorded the 552,000 gallons because that was the volume of fluid that was recirculated through pumps during the cleanup.
Bentonite mud is non-toxic to humans, but can ruin aquifers, and in large quantities smother aquatic life. A recent spill in an Ohio wetland of several million gallons of drilling mud during pipeline construction resulted in the operation halted by federal authorities. Ohio’s environmental regulators tested the mud and found diesel fuel had been added. The company building the Rover pipeline through Ohio is Energy Transfer Partners, which recently merged with Sunoco.
Violations were also issued as a result of drilling mud spills in Brookhaven, Delaware County in May, and another in Middletown Township, Delaware County due to an incident that occurred earlier this week.
DEP’s statement follows a chorus of complaints from private well owners whose water has turned cloudy or dried up in some places along the line. The incidents have prompted calls for a halt to drilling, or even to all Mariner East 2 construction, from state lawmakers representing some affected parts of the route.
Gov. Tom Wolf responded to angry residents and their representatives on Thursday by ordering the DEP to do what was legally possible to fix the problem.
In Friday’s statement, DEP Secretary Patrick McDonnell said he wanted to assure the public that the DEP is taking their complaints seriously.
“With so much concern about the Mariner East 2 pipeline, the public needs to know that DEP is taking its oversight and regulatory enforcement role seriously,” McDonnell said. “This project has raised questions about public health and the health of the environment, and it is important to be transparent about the issues that have arisen over the course of the construction.”
McDonnell said there are “numerous” investigations underway into further possible violations, and that he expects to take more enforcement actions. He described the actions taken so far as “not the end of the road but the beginning.”
There were 61 spills of drilling fluid between April and June, according to documents turned over by DEP as part of a lawsuit challenging permits issued by the agency back in February. The discrepancy in the number of cases between the court filed documents and DEP’s recent release, is unclear.
DEP continues to face accusations that it issued permits for the pipeline even though deficiencies remained in Sunoco’s application, and that it has not required Sunoco to comply with permit conditions.
Critics said the DEP’s enforcement actions, and promises to do more, were not enough to ensure that drinking water and the natural environment are protected from the pipeline project.
“The fines levied by DEP are trivial,” said Eric Friedman, a member of the Middletown Coalition for Community Safety, an anti-pipeline group in Delaware County, where horizontal directional drilling this week resulted in a leak of bentonite, a non-toxic drilling mud, into a creek. “Their ability to deter continued unlawful behavior by Sunoco is insignificant.”
The group urged Gov. Wolf to halt construction, and for DEP to revoke the construction permits pending a public review that includes risks to public safety from the project.
State Rep. Leanne Krueger-Braneky, a Delaware County Democrat, said the DEP’s actions do not deflect her earlier call for a halt to all pipeline construction pending an investigation into the causes and solutions to the leaks.
“I still believe that the responsible thing to do would be to halt construction until their investigations are completed,” she said, referring to the DEP.
She described the enforcement actions as a “positive first step” but argued that they don’t solve the “systemic problem” that Sunoco continues to leak drilling fluid into creeks and impact aquifers.
“A handful of notices of violation don’t seem to be enough to hold Sunoco accountable,” she said.
Sunoco’s Shields noted that the company halted drilling in West Whiteland Township, Chester County on July 13 after some residents’ wells were affected. The company had restarted drilling several days after the accident, but has since shut down operations at the site.
“We are continually evaluating our drilling plans, and while construction continues throughout the rest of the state, we are working to ensure that the Governor’s concerns are addressed,” Shields said.
The 350-mile pipeline will carry natural gas liquids from the Marcellus Shale of southwestern Pennsylvania to an export terminal at Marcus Hook near Philadelphia. The $3 billion project is due for completion by the end of the third quarter.
Story written by: By Jon Hurdle and Susan Phillips | StateImpact Pennsylvania
Photo by: Emily Cohen / StateImpact PA
Photo Caption: Workers cleared trees to make way for the Mariner East 2 pipeline in Delaware County in March. The company has spilled at drilling mud in dozens of incidents.. DEP has issued four violations, and one fine.
The Pennsylvania Commonwealth Court has explicated that a de facto “in effect” taking can take place over a specified period of time. In Re Mountaintop Area Joint Sanitary Auth. v. DeLuca, No. 1318 CD 2016 (July 12, 2017) the court noted that a sewer-authority chose to operate a system in a manner which would sporadically flood the landowners home. The court found that an easement was taken for a period of nearly five years. A Board of Viewers will determine damages per the Pennsylvania Eminent Domain Code.
One week later Faherty Law Firm presented evidence that a Centre County Township effectuated a temporary de facto taking via use of the landowners property as a shortcut between two public roads.
The Pennsylvania Department of Environmental Protection has fined Sunoco Logistics and is investigating numerous other incidents. Property owners may have a cause of action based on trespass or pollution beyond Sunoco acquired property rights.
DEP issues violation notices over pipeline
The state Department of Environmental Protection has issued four notices of violation to Sunoco Logistics over its construction of the $3 billion, 350-milelong Mariner East 2 pipeline.
The notices were issued to Sunoco in two of the 17 counties along the pipeline route for drilling fluid’s – a mix of water and bentonite clay used to lubricate the drill bit – impact on the state’s water. The department says the fluid is nontoxic and doesn’t have lasting effects on water.
Additionally, a consent order and agreement has been executed for a violation that impacted a wetland
area next to Interstate 81 in Cumberland County. That resulted in a $87,600 penalty. Plus, numerous other investigations of incidents that are anticipated to result in enforcement actions are underway, DEP said in a statement.
According to a recent report by StateImpact Pennsylvania, the pipeline construction has resulted in at least 61 drilling mud spills from April 25 through June 17 that occurred in 10 counties along the pipeline route that ranged from minor releases of five gallons to larger ones involving tens of thousands of gallons.
At Gov. Tom Wolf’s direction, the department plans to provide a weekly update of incidents related to this pipeline’s construction, which has come under pressure from groups opposing the project. The updates are on DEP’s website.
“With so much concern about the Mariner East 2 pipeline, the public needs to know that DEP is taking its oversight and regulatory enforcement role seriously,” DEP Secretar y Patrick McDonnell said. “This project has raised questions about public health and the health of the environment, and it is important to be transparent about the issues that have arisen over the course of the construction.” “I want to be clear: This is not the end of the road, but the beginning,” McDonnell said, “and I want the people of Pennsylvania to know and be confident that DEP is exercising the fullest extent of our regulatory authority for this project.”
Written by: Jan Murphy | Patriot News
Mike Faherty presented a Cumberland County Judge with Memorandums of Law before a second day of trial.
Cumberland County property owners to find out soon if pipeline can run through land
Three Cumberland County property owners will have to wait until at least next month to find out if their arguments against a pipeline, proposed to run beneath their land, will stand up in court.
Monday was the second day of testimony in Cumberland County Court in the case of Upper Frankford Township property owners Rolfe Blume, John Perry and Alan Walters, who are arguing Sunoco Pipeline does not have the authority to take a portion of their land to build the underground pipeline that will ship liquid natural gas across the state.
After the hearing, Cumberland County Judge M.L. Ebert asked both parties to submit briefs with the court before he makes his ruling as to whether or not Sunoco Pipeline is authorized to exercise the power of eminent domain to take a portion of their land for the Mariner East II pipeline project.
The parties have until March 31 to submit their arguments with the court.
While the property owners say the company does not have that power, Sunoco Pipeline officials pointed out three other judges have already ruled in the company’s favor in similar cases.
Through the two days of testimony held on Feb. 8 and on Monday, Mike Faherty, the attorney representing the property owners, argued that under state law, eminent domain cannot be used for private enterprise, even if there is an element of public use, which he said is the situation here.
The pipeline will move liquid natural gas from Ohio through Pennsylvania to the Delaware River for shipment overseas, making it subject to federal regulations and not the state regulations that allow for eminent domain, he said.
The jobs that Marcus Hook lost when the refiner shutdown will not be coming back in a wave. But once again there is optimism.
But judges in Huntingdon and Washington counties, as well in another Cumberland County case with different property owners, have sided with Sunoco Pipeline and ruled it is indeed a public utility with the power exercise eminent domain.
And nothing has changed in the pipeline plans since Cumberland County Judge Edward Guido ruled in Sunoco’s favor last year, Sunoco Pipeline vice president of business development Aaron Alexander testified, backing the company’s argument that Ebert should rule the same way.
Alexander testified Sunoco Pipeline has been recognized as a public utility and the state’s Public Utility Commission has recognized a public need for the pipeline to ship its supply of liquid natural gas.
The public necessity became apparent after the polar vortex of 2013 and 2014 brought frigid temperatures and a statewide shortage of propane, he said.
The current Mariner East pipeline does not have the necessary capacity, making the new pipeline a public need that benefits the people of Pennsylvania, Alexander said.
And pipelines are safer and cheaper than shipping by highway or railroad, he added. It would take 500 trucks daily to ship the proposed pipeline’s capacity of 275,000 barrels per day at a cost of 20 to 30 cents per barrel, compared to 7 cents per barrel via pipeline.
But Fahrety argued the contracts currently in place for the Mariner East II are for shipment overseas and not in Pennsylvania, making this an interstate pipeline rather than an intrastate pipeline – thus not subject to the use of eminent domain.
Alexander countered the pipeline has the capability of loading and off loading the product in Pennsylvania to meet the demand here.
“It’s like the highway system with on ramps and off ramps in the state and out of the state,” he said.
Additional testimony came from Sunoco Pipeline land-project manager Bart Mitchell, who said that bonds will be put up so that any damage done to the property while installing the pipeline will be paid for by the company.
And the pipeline will run underground, allowing the property owners to continue to use their land just about any way they want.
“They can farm on it, hunt on it and play on it,” he said. “They just can’t build a house on it.”
Written by: Steve Marroni | pennlive.com
Graphic by: Sunoco Logistics – This map shows the path the proposed Mariner East II pipeline will take through the state.