Editor & Publisher, Marcellus Drilling News (MDN)
Pennsylvania’s Commonwealth Court recently issued two different pipeline decisions, both of which are good news for pipelines and bad news for fractivists.
The entire panel of judges sitting on Pennsylvania’s Commonwealth Court, an appeals court in PA, ruled yesterday that zoning regulations in a local municipality, in this case Middletown (Delaware County), do not supersede the state Public Utility Commission when it comes to regulating Sunoco Logistics Partners Mariner East 2 (ME2) NGL pipeline.
In May 2017, six anti-pipeline residents, living near the ME2 pipeline route, asked the Middletown town council to reject the path of the pipeline near their property because it would, supposedly, pass closer than town code allows. The town council told the residents they’re out of luck, the town will not pursue any action to block Mariner East 2. Period.
The residents, amped-up, agitated and funded by Big Green groups filed a lawsuit against ME2, to force it to conform with Middletown’s ordinance. The lawsuit was filed in the Delaware County Court of Common Pleas.
The judge dismissed the case in June, so the antis, again funded by Big Green groups, appealed the case to the next higher court, Commonwealth Court. An “en banc” panel (meaning all of the judges) heard the case, indicating its high importance. The en banc panel ruled yesterday, against the Middletown residents.
Here is an article Law360 released:
A Pennsylvania appeals court on Monday issued the second in a set of rulings that a controversial pipeline project being developed by a Sunoco Inc. unit was subject only to state regulation and could not be subjected to local zoning rules.
An en banc Pennsylvania Commonwealth Court panel affirmed a decision finding that the state Public Utility Commission’s regulatory authority superseded zoning rules that residents of a suburban Philadelphia municipality had hoped to apply to Sunoco Pipeline LP’s Mariner East 2 project.
In upholding the decision Monday, the panel pointed to an opinion it handed down last month that rejected a substantially similar attempt by residents in another suburban Philadelphia municipality to apply local zoning rules to the project.
“We hold that the township lacks authority to zone out a public utility pipeline service or pipeline facility regulated by the PUC,” the court said in that opinion.
The lawsuit had been brought by a half-dozen Middletown Township residents in the Delaware County Court of Common Pleas last May alleging that the Mariner East 2 pipeline violated the local 56-year-old Subdivision and Land Development Ordinance, or SALDO, requiring that all gas and oil pipelines must be at least 75 feet from a unit where an individual lives. The Mariner East 2 pipeline is meant to ferry natural gas liquids from the Marcellus and Utica shale in western Pennsylvania, Ohio and West Virginia to a refinery outside of Philadelphia.
The suit mirrored a case brought by the Delaware Riverkeeper Network and a pair of local residents in the Chester County Court of Common Pleas alleging that a zoning law adopted by West Goshen Township in 2014 barred the construction of hazardous gas and liquid pipelines.
Trial judges tossed both cases, leading to appeals before the Commonwealth Court.
The Delaware County residents argued on appeal that the state’s Public Utility Code did not explicitly grant the PUC with exclusive siting authority with regard to pipeline, and that it didn’t forbid municipalities from exercising such authority in order to protect the health, welfare and safety of local residents.
They pointed to the fact that the PUC had issued no regulations governing the siting of pipelines.
In upholding the dismissal of the Chester County case last month, however, the Commonwealth Court ruled that a review of the Public Utility Code and relevant case law revealed that the state legislature “intended the code to occupy the field of public utility regulation, in the absence of an express grant of authority to the contrary.”
And the Commonwealth Court relied upon that reasoning in issuing its decision in the Delaware County case Monday.
“For the reasons set forth in detail in Delaware Riverkeeper , we reach the same conclusion here with regard to plaintiffs’ cause of action to have the SALDO applied to Sunoco’s Mariner East 2 pipeline,” the opinion said. “Accordingly, we affirm.”
You can read a full copy of the en banc panel’s ruling, issued March 26, 2018 here.
Editor’s Note: This wasn’t the only recent Commonwealth Court victory over fractivists. There was also another very revealing decision with respect to compressor station regulation in Cecil Township, Washington County. It had to do with mid-stream company MarkWest’s long struggle to secure approval from the Township to build a compressor station. It started in 2011 when the Township denied a permit for the use, only to be eventually overturned by the Commonwealth Court, which ordered the Township to treat the compressor station as a permitted use use and to process the application and allowing it to attach conditions under its Unified Development Ordinance (a combined set of subdivision and zoning regulations):
Should the Board determine . . . within the confines of the UDO’s objective standards and criteria that any terms or conditions are needed to attach to the special exception application in order to ensure compliance with the UDO, it shall specify the applicable UDO provision and explain why the term or condition is necessary.
Cecil Township, as instructed, subsequently reviewed the application and attached over two dozen conditions to the approval, many of which had no tangible relationship to the requirements of the Township ordinance. This resulted in the matter eventually reaching the Commonwealth Court once again for a ruling on whether the conditions imposed were lawful and in line with its earlier order.
Many of the conditions were obvious attempts to frustrate the development of the compressor station and pipeline development and the Commonwealth Court dispensed with them, illustrating, in the process some fundamental principles. Among those principles (many from previous case law) were the following:
- If the ordinance’s objective special exception criteria are met, it is presumed that the use is consistent with the health, safety and general welfare of the community.
- To overcome the presumption, objectors’ evidence must “show, to a high probability, that the proposed use would generate adverse impacts not normally generated by this type of use (i.e., natural gas compressor stations), and that those impacts would pose a substantial threat to the health and safety of the community.”
- The burden that is placed upon the objectors requires more than mere speculation of possible harm.
- A zoning hearing board does not enjoy broad, inchoate powers to advance its members’ vision of what constitutes the public welfare or even the public welfare as defined in a variety of environmental protection statutes, be they state or federal.
- Ultimately, the conditions cannot be so onerous as to bar the use, and broad policy statements may not form the basis for such conditions.
- In addition, although Section 601 of the MPC, 53 P.S. § 10601, expressly authorizes municipalities to enact zoning ordinances designating what land uses are permitted in what districts for purposes of planned community development (i.e., the where), the MPC does not authorize those municipalities to dictate specific business operations (i.e., the how) under the guise of zoning regulation.
There’s more but the reader will get the idea; municipalities are obliged to follow the law and regulators cannot expand on their own authority to appease the phony concerns of fractivists. Neither cannot dictate the business operations of the natural gas industry in a blatant attempt to frustrate it. Those are pretty fundamental and this was a big win, a second big win at Commonwealth Court in recent days in shutting down fractivists , which is encouraging.
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The post PA Commonwealth Court Shuts Down Fractivists Twice on Pipeline Issues appeared first on Natural Gas Now.
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