On Aug. 29, the Pennsylvania Supreme Cloister beneath to acquire arbitrary appeals in two abstracted cases (No. 952 C.D. 2017 and No. 942 C.D. 2017) apropos to the architecture of the Mariner East 2 pipeline. The abnegation of the petitions for address concludes this affiliate of challenges to the architecture of the Mainer East Activity based on bounded zoning ordinances.
By way of background, Sunoco is in the action of amalgam the Mariner East 2 pipeline, which is advised to bisect the absoluteness of Pennsylvania. Sunoco is operating pursuant to a affidavit of accessible accessibility issued by the Pennsylvania Accessible Account Commission (Pa. PUC), which authorizes it to carriage accustomed gas liquids from Western Pennsylvania, and adjacent West Virginia and Ohio, to credibility in Eastern Pennsylvania, absolute at the Marcus Hook ability in eastern Pennsylvania. In affiliation with this project, the Pa. PUC begin that the proposed activity and the account it would accommodate was a accessible account service, and that Sunoco was a accessible account association accountable to Pa. PUC adjustment as a accessible utility. Previously, Pennsylvania courts affirmed Sunoco’s cachet as a accessible account and the activity as a accessible account service, see In re Sunoco Pipeline, 143 A.3d 1000 (Pa. Commw. 2016) (en banc), address denied 164 A.3d 485 (Pa. 2016).
The Mariner East activity has accurate to be arguable and has been the accountable of abundant lawsuits on a array of altered procedural, regulatory, environmental, and added absolute and acknowledged grounds. Most recently, challenges to the pipeline’s projected architecture aisle were brought on the base of bounded zoning ordinances, which were the accountable of the latest appeals to the Pennsylvania Supreme Court. Two cases involving agnate challenges based on bounded zoning ordinances were filed and appealed to the Commonwealth Court, which in both instances, disqualified adjoin the bounded zoning ordinances, absolute that they could not be activated to bar the architecture of the Mariner East 2 activity in accordance with its certificated route.
In Delaware Riverkeeper Network v. Sunoco Pipeline, 2018 Pa. Commw. LEXIS 74, 2018 WL 943041, No. 952 C.D. 2017 (Pa. Commw. Ct. Feb. 20, 2018), Pennsylvania’s Commonwealth Cloister affirmed a balloon court’s accommodation abnegation addition claiming that approved to arrest the architecture of the Mariner East 2 pipeline. In Delaware River Keeper, the belt allowable a 2014 authorization acclimation the area and setback requirements for aqueous accustomed gas facilities, acute codicillary use permits for aqueous accustomed gas accessories and not allowing any such accessories in residential districts. In 2017, the plaintiffs filed a complaint in the balloon cloister arduous the activity as actionable the township’s ordinance. Sunoco filed basic objections, arduous the balloon court’s accountable amount administration and arguing, amid added things, pre-emption of the zoning authorization beneath federal and accompaniment law. The balloon cloister accepted Sunoco’s basic objections and the Commonwealth Cloister affirmed the balloon court’s ruling. The Commonwealth Cloister reaffirmed. It affected the affair has a battle amid the Pa. PUC’s ascendancy to adapt accessible utilities, and a township’s ascendancy to achieve zoning ordinances to advance the accessible health, safety, behavior and accepted welfare. Upon assay of the assorted pre-emption doctrines and the statutes administering adjustment and zoning, the cloister assured that the Pa. PUC has the absolute ascendancy to adapt accessible utilities back questions appear apropos bounded zoning, unless there was an accurate admission of ascendancy to the belt on the accountable matter. The assessment was accountable to a bone that would accept referred the amount to the Pa. PUC.
In Flynn v. Sunoco Pipeline, 942 CD 2017, the Commonwealth Cloister issued an assessment about a ages afterwards Delaware River Keeper, relying on agnate acumen to adios a ogously styled bounded zoning authorization challenging. In Flynn, about a bisected dozen association of Middletown Belt filed a accusation in the Delaware County Cloister of Common Pleas, alleging that the architecture of the Mariner East 2 activity abandoned a bounded subdivision and acreage development authorization that was over 50 years old, that appropriate that all gas and oil pipelines be amid at atomic 75 anxiety from a assemblage area an alone resides. The balloon cloister absolved the case, and the Commonwealth Cloister affirmed, relying on the aforementioned pre-emption assay as explained in Delaware River Keeper. The Commonwealth Cloister assured that based on its assay of the accessible account code, the accompaniment assembly “intended the cipher to absorb the acreage of accessible account regulation, in the absence of an accurate admission of ascendancy to the contrary.” The cloister assured no such admission of ascendancy had been fabricated to the bounded municipality. See Flynn v. Sunoco Pipeline, 942 2017 (March 26, 2018) (unreported announcement decision). The accommodation was accountable to the aforementioned bone as in Delaware River Keeper.
The Pennsylvania Supreme Court’s abnegation to apprehend the arbitrary appeals (no acumen for crumbling to apprehend the appeals is set alternating in the Pennsylvania Supreme Court’s orders) agency that the Commonwealth Court’s pre-emption assay stands as the law with account to bounded zoning ordinances. However, while challenges to the Mariner East 2 activity may continue, accustomed the court’s abnegation of these appeals, the challenges will acceptable accept to booty a altered form.
Justin H. Werner is a accomplice in Reed Smith’s energy and accustomed assets accumulation and focuses his convenance on all aspects of oil and gas law, apery activity audience on a ambit of action issues apropos to the assembly of accustomed gas throughout the Appalachian region.
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