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Sunoco Pipeline L.P. v. Pennsylvania State Senator Dinniman

Commonwealth Court of Pennsylvania

September 9, 2019

Sunoco Pipeline L.P., Petitioner
v.
Pennsylvania State Senator Andrew E. Dinniman and Public Utility Commission, Respondents

          Argued: June 3, 2019

          BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge HONORABLE ROBERT SIMPSON, Judge [1] HONORABLE ELLEN CEISLER, Judge.

          OPINION

          MARY HANNAH LEAVITT, PRESIDENT JUDGE JUDGE.

         Sunoco Pipeline L.P. (Sunoco) petitions for review of an interlocutory order of the Public Utility Commission (PUC) that affirmed, in part, an interim emergency order of its Administrative Law Judge (ALJ). The PUC amended the emergency order to permit its immediate appeal to this Court. On appeal, Sunoco argues that the PUC erred because the complainant, Pennsylvania State Senator Andrew E. Dinniman, lacked standing to file the underlying complaint with the PUC. Senator Dinniman disclaimed personal standing, and Sunoco contends that the Senator failed to establish grounds for legislative standing. For the reasons that follow, we reverse and remand.

         Background

         Sunoco is a public utility regulated by the PUC. Sunoco operates a pipeline, known as Mariner East 1 (ME1), and is constructing two new pipelines, known as Mariner East 2 and 2X (ME2 and ME2X). The Mariner East pipelines transport natural gas liquids from the Marcellus and Utica Shale Basins through and within the Commonwealth, with a terminus at Sunoco's Marcus Hook Industrial Complex in Delaware County.[2]

         Senator Dinniman represents the 19th Senatorial District, which includes West Whiteland Township (Township) in Chester County. In April 2018, he filed a formal complaint (Complaint) with the PUC seeking to enjoin Sunoco's operation of ME1 and the construction of ME2 and ME2X in the Township.

         Senator Dinniman's Complaint alleged that during construction of the underground path for ME2 and ME2X, several sinkholes developed.[3] One of the sinkholes caused ME1 to become exposed and damaged the pipeline's underground support. In addition, homeowners in the Township experienced problems with their water service, including diminished water pressure and discolored water. The Complaint alleged that Sunoco had failed to warn and protect the public from danger and had failed to select a safe pipeline right-of-way that would avoid existing homes, industrial buildings and places of public assembly.

         In addition to the Complaint, Senator Dinniman filed a petition for interim emergency relief to enjoin the operation of ME1 and the construction of ME2 and ME2X in the Township.[4] As did the Complaint, the petition alleged that the construction and operation of Sunoco's pipelines raised serious public safety concerns. He requested the PUC to issue an emergency order to stop Sunoco from operating or constructing the pipelines in the Township while the merits of the Complaint were litigated.

         In the Complaint and petition for emergency relief, Senator Dinniman asserted standing as a legislator. In support, Senator Dinniman pointed to his responsibilities as a state senator:

• He represents the 19th Senatorial District, which includes West Whiteland Township;
• He represents individuals in the 19th Senatorial District who have been affected by Sunoco's Mariner East pipeline project;
• He is a member of the Senate Environmental Resources and Energy Committee;
• He is a member of the Joint Legislative Air and Water Pollution Control and Conservation Committee;
• He is a member of the General Assembly with the authority to receive, review and comment upon the Governor's annual expenditure plan for the Environmental Stewardship Fund under 27 Pa. C.S. §6104, which funds part of the Chester County Conservation District and its oversight of the watersheds and water supply of West Whiteland Township;
• He receives annual, mandatory reports from the PUC under the Public Utility Code, 66 Pa. C.S. §§320, 1327; and
• He serves on the Pennsylvania Pipeline Infrastructure Task Force, which recommends policies, guidelines and best practices to guide expansion of pipeline infrastructure in the Commonwealth.

         Reproduced Record at 9a-10a, 31a-32a (R.R.__). Senator Dinniman asserted that these duties supported his claim of legislative standing.

         The emergency petition was assigned to an ALJ, who conducted two days of hearings. Senator Dinniman testified that he filed the emergency petition in his "capacity as a state Senator." Notes of Testimony, 5/7/2018, at 121 (N.T.); R.R. 90a.[5] Sunoco objected to Senator Dinniman's standing for the stated reason that Sunoco's operation and construction of the Mariner East pipelines in the Township will not impact the Senator's ability to propose or vote on legislation, which is the essence of legislative standing. Both parties presented evidence on whether an emergency order was warranted.

         On May 21, 2018, after reviewing the evidence, the ALJ entered an emergency interim order directing Sunoco to cease operation of ME1 and all construction of ME2 and ME2X until the PUC disposed of the Senator's Complaint. The ALJ determined that Senator Dinniman had legislative standing to pursue the action, explaining that, "his participation in this matter relates to his official duties as a Senator for the affected district." Interim Emergency Order, 5/21/2018, at 6.

         The PUC reviewed the Interim Emergency Order. On June 15, 2018, it affirmed in part and reversed in part the ALJ's order. The PUC vacated the injunction as to the operation of ME1 but upheld the injunction as to the construction of ME2 and ME2X. The PUC rejected Sunoco's challenge to Senator Dinniman's standing. It held that Senator Dinniman had personal standing as a property owner in the Township who was adversely affected by the dangerous conditions that had developed from Sunoco's construction of the Mariner East pipelines. The PUC explained that it was "not convinced that the reasoning in the ALJ's Interim [] Order" supported a finding of legislative standing; however, it did not decide the issue, explaining that Senator Dinniman's personal standing mooted the issue. PUC Order, 6/15/2018, at 21.

         Thereafter, Sunoco requested the PUC to certify its June 15, 2018, order for interlocutory appeal to this Court. On July 25, 2018, the PUC granted Sunoco's motion. Sunoco then filed a petition with this Court to allow an interlocutory appeal, [6] which this Court granted on September 27, 2018. The appeal was limited to the following question:

Does State Senator Dinniman have standing to pursue his claim before the [Commission]?

Commonwealth Court Order, 9/27/2018, at 1.

         Analysis

         The Public Utility Code creates a private right of action to allow persons "with an interest" to enforce the Public Utility Code against a public utility. Section 701 states, in relevant part, as follows:

[t]he commission, or any person, corporation, or municipal corporation having an interest in the subject matter, or any public utility concerned, may complain in writing, setting forth any act or thing done or omitted to be done by any public utility in violation, or claimed violation, of any law which the commission has jurisdiction to administer, or of any regulation or order of the commission.

66 Pa. C.S. ยง701 (emphasis added). The PUC has adopted a regulation that implements Section 701, and it ...


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