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Clean Air Council v. Sunoco Pipeline L.P.

Commonwealth Court of Pennsylvania

April 30, 2018

Clean Air Council, Margaret M. deMarteleire, and Michael S. Bomstein
v.
Sunoco Pipeline L.P., Appellant

          Argued: February 7, 2018

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE PATRICIA A. McCULLOUGH, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ELLEN CEISLER, Judge

          OPINION

          P. KEVIN BROBSON, Judge.

         I. INTRODUCTION

         This appeal arises out of an action for declaratory and injunctive relief brought by Clean Air Council and two of its members, Margaret M. deMarteleire and Michael S. Bomstein (collectively, Plaintiffs), in the Court of Common Pleas of Philadelphia County (trial court) against Sunoco Pipeline L.P. (Sunoco). By Order dated May 25, 2017, the trial court, by the Honorable Linda S. Carpenter, denied Sunoco's motion for summary judgment. The trial court, by the Honorable Mary D. Colins, issued an amending order on July 13, 2017, pursuant to Section 702(b) of the Judicial Code, 42 Pa. C.S. § 702(b), [1] certifying the following controlling questions of law for immediate appellate review:

(a) Are Plaintiffs' claims outside the subject matter jurisdiction of the [trial court] or otherwise non-justiciable as collateral attacks on the Public Utility Commission's (PUC) determinations?
(b) Are Plaintiffs' claims based upon Pennsylvania Constitution Article I, Section 27 also outside the subject matter jurisdiction of the [trial court] or otherwise non-justiciable as collateral attacks on the Department of Environmental Protection's issuance of environmental permits to [Sunoco] for the pipelines?
(c) Do Plaintiffs, as non-condemnees, lack standing to pursue their claims?
(d) Are Plaintiffs' due process claims legally insufficient because the procedural provisions of the Eminent Domain Code[2] and remedies provided by the Public Utility Code[3] satisfy any due process requirements?

         Sunoco thereafter filed a petition for permission to appeal pursuant to Rule 1311(b) of the Pennsylvania Rules of Appellate Procedure, which this Court granted by its Order of September 27, 2017. In so doing, we indicated that we would consider the above questions certified by the trial court, along with the question of whether Sunoco is "the Commonwealth, " such that it can be sued for violating the duties of the "trustee" under Article I, Section 27 of the Pennsylvania Constitution.[4]

         II. BACKGROUND

         Plaintiffs commenced this action in the trial court by Complaint filed on August 27, 2015. (Reproduced Record (R.R.) 59a-398a.) In their eight-count Complaint, [5] Plaintiffs challenge the right, authority, and entitlement of Sunoco to exercise the power of eminent domain in order to construct two natural gas liquid (NGL) pipelines, known as Mariner East 1 (ME1) and Mariner East 2 (ME2), across the Commonwealth of Pennsylvania as part of Sunoco's Mariner East Project. Ms. deMarteleire and Mr. Bomstein are husband and wife, jointly residing at their home in Media, Delaware County, Pennsylvania. (Compl. ¶ 2.) Both are members of Clean Air Council. Clean Air Council is a nonprofit corporation with a place of business in Philadelphia, Pennsylvania. (Id. ¶ 1.) Clean Air Council's mission is to protect everyone's right to breathe clean air.

         Plaintiffs' Complaint includes a lengthy and detailed history of the Mariner East Project, with which this Court is very familiar. Briefly stated, the Mariner East Project is an effort by Sunoco to construct and operate an integrated pipeline system to transport petroleum products and NGLs (e.g., propane, ethane, and butane) from the Marcellus and Utica Shale formations in Pennsylvania, Ohio, and West Virginia, through the Commonwealth of Pennsylvania, with a terminus at Sunoco's Marcus Hook Industrial Complex in Delaware County, Pennsylvania. See In re Condemnation by Sunoco Pipeline L.P., 143 A.3d 1000, 1008 (Pa. Cmwlth.) (en banc) (Martin), appeal denied, 164 A.3d 485 (Pa. 2016). The project consists of two phases-ME1 (combination of new and existing pipelines) and ME2 (entirely new pipeline). Id.

         As Plaintiffs note in paragraph 56 of their Complaint, efforts by Sunoco to acquire easements over private property to construct ME2 have met resistance, spawning litigation across the Commonwealth under the Eminent Domain Code, some of which has reached this Court. The lead case is Martin. Martin involved litigation over declarations of taking that Sunoco filed in the Court of Common Pleas of Cumberland County pursuant to Section 302 of the Eminent Domain Code, [6]26 Pa. C.S. § 302, condemning private property for purposes of constructing ME2.[7]The property owners filed preliminary objections, contesting the declarations. In doing so, they raised some of the legal challenges that Plaintiffs raise in their Complaint.

         Specifically, the property owners in Martin contended that ME2 was an interstate pipeline regulated by the Federal Energy Regulatory Commission (FERC) and not an intrastate pipeline regulated by the PUC as a public utility. As a consequence, Sunoco could not use its eminent domain power as a public utility to construct ME2.[8] Martin, 143 A.3d at 1015-16; (Compl. Ct. I). The property owners in Martin also contended that Sunoco lacked certificates of public convenience (CPC) from the PUC to construct ME1 and ME2, which, under the Public Utility Code, Sunoco must possess in order to exercise its eminent domain power as a public utility.[9] Martin, 143 A.3d at 1016-17; (Compl. Ct. II). They also contended that Sunoco failed to demonstrate a public need served by the taking. Martin, 143 A.3d at 1017-18.

         Ultimately, a divided en banc panel of this Court rejected the property owners' contentions and allowed the takings to proceed:

For these reasons, we conclude that common pleas did not err when it overruled Condemnees' Preliminary Objections to Sunoco's Declarations of Taking. We further conclude that Sunoco is regulated as a public utility by the PUC and is a public utility corporation, and Mariner East interstate service is a public utility service rendered by Sunoco within the meaning of the BCL.[10]

Martin, 143 A.3d at 1020 (citation omitted).[11] In so doing, the Court expressly held that Sunoco possesses the requisite approvals from the PUC to construct ME2 to provide intrastate service. Id. at 1015-16. Since Martin, other property owners across the Commonwealth have fought against Sunoco's efforts to take their property by eminent domain, with similar results. See, e.g., In re Condemnation by Sunoco Pipeline L.P., 165 A.3d 1044 (Pa. Cmwlth. 2017) (Katz), appeal denied, (Pa., No. 507 MAL 2017, filed Jan. 22, 2018); In re Condemnation by Sunoco Pipeline L.P. (Pa. Cmwlth., No. 1780 C.D. 2016, filed Oct. 24, 2017) (Andover Homeowners' Assoc., Inc.), petition for allowance of appeal pending, (Pa., No. 814 MAL 2017, filed Nov. 27, 2017); In re Condemnation by Sunoco Pipeline L.P. (Pa. Cmwlth., No. 2030 C.D. 2016, filed June 29, 2017) (Perkins), appeal denied, (Pa., No. 501 MAL 2017, filed Jan. 22, 2018); In re Condemnation by Sunoco Pipeline L.P. (Pa. Cmwlth., No. 1306 C.D. 2016, filed May 26, 2017) (Blume), appeal denied, (Pa., No. 434 MAL 2017, filed Jan. 22, 2018); In re Condemnation by Sunoco Pipeline L.P. (Pa. Cmwlth., No. 565 C.D. 2016, filed May 24, 2017) (Homes for Am.), appeal denied, (Pa., No. 429 MAL 2017, filed Jan. 22, 2018); In re Condemnation by Sunoco Pipeline L.P. (Pa. Cmwlth., No. 220 C.D. 2016, filed May 15, 2017) (Gerhart), appeal denied, (Pa., No. 400 MAL 2017, filed Jan. 22, 2018).

         In their Complaint, Plaintiffs attempt to open up a new front in the battle to stop Sunoco from exercising the power of eminent domain to construct ME1 and ME2.[12] They commenced their assault in the trial court, although it is undisputed that neither ME1 nor ME2 enters Philadelphia County. Moreover, unlike the property owners in the cases cited above, Plaintiffs do not allege to be "condemnees"-i.e., owners of real property subject to filed declarations of taking under the Eminent Domain Code. See 26 Pa. C.S. § 103 (definition of "condemnee"). Instead, Ms. deMarteleire and Mr. Bomstein allege that their home in Delaware County was, at the time they filed their Complaint, on the proposed route of ME2. (Compl. ¶ 108.)

         As for its interest, Clean Air Council also identifies as a member Eric Friedman, a resident of the Andover Development in Thornberry Township, Delaware County, and President of the Andover Homeowners' Association (Andover HOA). (Compl. ¶¶ 118-19.) Plaintiffs allege that the path of ME2 would run through open space in the Andover Development and that the Andover HOA and Mr. Friedman oppose any easement to Sunoco to construct ME2. (Compl. ¶¶ 120-25.) Indeed, Sunoco proceeded under the Eminent Domain Code by filing a declaration of taking in the Court of Common Pleas of Delaware County for purposes of securing an easement to construct a portion of ME2 within the Andover HOA open space. The Andover HOA filed preliminary objections, challenging the declaration. The Delaware County court overruled the preliminary objections, thereby allowing the taking. This Court affirmed. Andover Homeowners' Assoc., Inc., slip. op. at 11.[13]

         Clean Air Council also points to one of its members, Thomas Casey of Chester County. According to the Complaint, Sunoco "initially expressed intent" to take Mr. Casey's land for purposes of ME2, but it ultimately chose not to do so. (Compl. ¶ 129.) Clean Air Council also alleges generally that it "has members throughout Pennsylvania, including along the route of" ME2 who do not wish to give or sell an easement to Sunoco for ME2. (Compl. ¶¶ 116, 235.) Clean Air Council, however, does not identify any of these members, nor does it allege that any of them face an imminent taking of their property by Sunoco.

         As noted above, Counts I and II of the Complaint include claims that are identical in all material respects to challenges that this Court addressed in Martin. With respect to relief, Plaintiffs seek a judicial declaration that Sunoco "may not exercise the right of eminent domain against" Ms. deMarteleire and Mr. Bomstein and other Clean Air Council members. (R.R. 98a, 100a.) In Counts III and IV, Plaintiffs seek a judicial declaration that Sunoco's condemnations to construct the Mariner East Project violate Plaintiffs' property rights secured by the Takings Clause of the Fifth Amendment to the United States Constitution[14] and Article X, Section 4 of the Pennsylvania Constitution[15] and that, as a result, Sunoco "may not exercise the right of eminent domain against" Ms. deMarteleire and Mr. Bomstein and other Clean Air Council members. (Compl. Cts. III, IV.) In this regard, Plaintiffs specifically allege that Sunoco is using its eminent domain power to effect a "private taking" for a "private purpose."

         In Counts V and VI, Plaintiffs purport to raise a procedural due process challenge under the Fourteenth Amendment to the United States Constitution and Article I, Section 1 of the Pennsylvania Constitution.[16] (R.R. 103a.) Specifically, Plaintiffs aver that they did not receive adequate notice of any PUC authorizations granted to Sunoco to construct ME1 or ME2. Had they received such notices, Plaintiffs allege that they would have appeared before the PUC to oppose such authorizations. As for relief, Plaintiffs seek a "hearing to determine whether [Sunoco] is entitled to exercise eminent domain rights over" Ms. deMarteleire's and Mr. Bomstein's property and other Clean Air Council members' properties. (Id.)

         In Count VII of the Complaint, Plaintiffs allege that Sunoco has fiduciary duties as a trustee under the Environmental Rights Amendment to consider the impact its construction of the Mariner East Project would have on Pennsylvania's public natural resources. Plaintiffs further allege that Sunoco has failed to perform this assessment. Accordingly, Plaintiffs seek a declaration that Sunoco may not pursue eminent domain with respect to either ME1 or ME2 "until it demonstrates to the PUC that its pipeline project comports with the Environmental Rights Amendment." (R.R. 104a (emphasis added).) Finally, in Count VIII, Plaintiffs seek preliminary and final injunctive relief, barring Sunoco from using eminent domain to acquire easements to construct ME1 and ME2 based on the substantive claims in the Complaint. (R.R. 107a.)

         In its Opinion in support of its order denying Sunoco's motion for summary judgment, the trial court rejected Sunoco's contention that this Court's decisions in Martin and subsequent eminent domain cases related to the Mariner East Project compelled the trial court to enter judgment in Sunoco's favor as a matter of law on Plaintiffs' claims. (Trial Ct. Op. at 6-10.) With respect to Counts I and II, the trial court noted that discovery is ongoing and factual issues remain that preclude the entry of summary judgment. With respect to the remaining substantive counts (Counts III-VII), the trial court noted that these constitutional claims are outside of the ambit of the Eminent Domain Code and the adjudicative authority of the PUC. Accordingly, they were not raised nor could they have been raised in the condemnation cases previously addressed by this Court. Finally, the trial court noted that because summary judgment would be denied with respect to the substantive counts of the Complaint, Count VIII, which derivatively seeks injunctive relief, should also proceed.

         III. ANALYSIS

         A. Standard of Review

         Our standard of review on appeal from the grant or denial of summary judgment is de novo, and our scope of review is plenary. Pentlong Corp. v. GLS Capital, Inc., 72 A.3d 818, 823 n.6 (Pa. Cmwlth. 2013). Our review is limited to determining whether the trial court committed an error of law or abuse of discretion. Wolfe v. Stroudsburg Area Sch. Dist., 688 A.2d 1245, 1247 (Pa. Cmwlth. 1997). Summary judgment is only appropriate where, upon examination of the record in the light most favorable to the nonmoving party, no genuine issue of material fact exists and the moving party is clearly entitled to a judgment as a matter of law. Dwight v. Girard Med. Ctr., 623 A.2d 913, 915 (Pa. Cmwlth. 1993).

         In their brief, Plaintiffs raise several concerns about issue preservation, suggesting that Sunoco did not raise or preserve below the questions currently on appeal with respect to some or all of the counts of the Complaint. In response, we note that it is the trial court, not Sunoco, that has certified questions to this Court as "controlling questions of law" and has amended its prior order, denying summary judgment, to indicate that its ruling denying Sunoco's motion for summary judgment "involves" the four questions that the trial court certified in its amending order pursuant to Section 702(b) of the Judicial Code. Moreover, in their Answer to Petition for Permission to Appeal Under Pa. R.A.P. 1311 filed with the Court in this matter, Plaintiffs concede that Sunoco raised the issues currently before this Court in several filings before the trial court, most recently its motion for summary judgment. (Pls.' Answer at 1-2.) For these reasons, we will proceed to address the issues certified by the trial court consistent with the standard and scope of review set forth above.

         B. Question 1: Are Plaintiffs' Claims Outside the Subject Matter Jurisdiction of the [Trial Court] or Otherwise Non-Justiciable Collateral Attacks on the Public Utility Commission's Determinations?[17]

         1. Count I (Interstate/Intrastate) and Count II (Lack of CPCs)

         The essence of Plaintiffs' Contention in Count I of the Complaint is that ME1 and ME2 are interstate pipelines regulated by the FERC, not the PUC. Sunoco, therefore, lacks the authority to condemn property to construct ME1 and ME2 afforded under the BCL to public utilities regulated by the PUC. In Count II, Plaintiffs contend that even if the Mariner East Project is intrastate in nature, the PUC has not issued the required CPCs for the pipelines. Sunoco essentially argues that in Martin, the issues raised by Plaintiffs in Counts I and II of the Complaint have already been decided. Sunoco contends that Plaintiffs' effort to press the issues in the trial court amount to collateral attacks on the CPCs issued by the PUC to Sunoco.

         In response, Plaintiffs claim that common pleas courts, and not the PUC, have "jurisdiction over claims as to the validity of a utility's taking." (Pls.' Br. at 16.) In support, Plaintiffs cite to this Court's opinion in Southeastern Pennsylvania Transportation Authority v. Public Utility Commission, 991 A.2d 1021 (Pa. Cmwlth. 2010) (SEPTA). In that case, SEPTA appealed the PUC's approval of an application to site and construct a high voltage power line. On appeal, SEPTA contended that the PUC should have denied the application, because the utility could not justify condemnation of the property to construct the power line. Agreeing with the PUC, this Court held that whether a public utility may exercise the power of eminent domain is not an issue that the PUC considers when reviewing an application for a CPC:

[T]he only role of the PUC is to consider if the project is necessary or proper for the benefit of the public, and it is expressly barred from considering the power of the utility to condemn. After the PUC authorizes a utility to exercise the power of eminent domain, a condemnation is far from final, as 15 Pa. C.S. § 1511(g) makes clear that before taking the land, the utility must prevail in a condemnation action at the Court of Common Pleas. As our Supreme Court held, in interpreting an earlier but substantially similar version of the statute: "Once there has been a determination by the PUC that the proposed service is necessary and proper, the issues of scope and validity and damages must be determined by a Court of Common Pleas exercising equity jurisdiction."

SEPTA, 991 A.2d at 1023 (quoting Fairview Water Co. v. Pa. Pub. Util. Comm'n, 502 A.2d 162, 167 (Pa. 1985)).

         We agree with Plaintiffs in their assessment of the law but only to a point. We do not read Counts I and II of the Complaint as challenging orders or CPCs issued by the PUC to Sunoco. Rather, Plaintiffs challenge the power of Sunoco to condemn property by eminent domain. As we noted in SEPTA, in order to exercise the power of eminent domain conferred by the BCL, a public utility must first obtain a CPC from the PUC.[18] In evaluating a request for a CPC, the PUC only considers whether the proposed service is "necessary or proper for the service, accommodation, convenience, or safety of the public." 66 Pa. C.S. § 1103(a). There is no provision in either the Public Utility Code or the BCL that also authorizes the PUC, in the context of a CPC administrative proceeding, to consider whether the public utility may exercise the power of eminent domain to effect a taking in furtherance of the authorized service. Indeed, as this Court observed in SEPTA, although the issuance of the CPC allows the public utility to commence proceedings under the Eminent Domain Code, success in the common pleas court is not guaranteed. To effect a condemnation, the public utility must proceed and succeed ...


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