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Cumberland landowners could appeal Sunoco eminent domain ruling

Roger DuPuis//October 5, 2015//

Cumberland landowners could appeal Sunoco eminent domain ruling

Roger DuPuis//October 5, 2015//

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Attorney Michael F. Faherty is representing three couples who own North Middleton Township properties affected by Sunoco Logistics Partners LP’s plans. The plaintiffs are R. Scott Martin and Pamela S. Martin, Douglas M. Fitzgerald and Lyndsey M. Fitzgerald, and Harvey A. Nickey and Anna M. Nickey.

Mariner East 2 is a $2.5 billion, 350-mile pipeline project intended to cross Pennsylvania, from Washington County in the west to Delaware County in the east, traversing the midstate en route. Construction is set to begin in the first half of 2016, Sunoco spokesman Jeff Shields said, and be finished by year’s end.

At issue is whether the new pipeline would fall under the purview of the state’s Public Utilities Commission. If so — as Sunoco argues and as Cumberland County Judge Edward Guido agreed in his Sept. 29 ruling — that gives Sunoco eminent domain powers, allowing the energy company to take easements or land from private owners, even in the face of their objections.

Interstate vs. intrastate

Guido’s ruling supported Sunoco’s contention that the pipeline will engage in intrastate transportation of petroleum products, thus making it subject to PUC regulation and giving Sunoco eminent domain authority.

But the line will enter the state via West Virginia and Ohio, and Faherty has argued that this would make it subject to Federal Energy Regulatory Commission regulation, with no right of eminent domain.

According to a description of the project provided by Sunoco, Mariner East 2 will “carry natural gas liquids from Ohio, West Virginia and western Pennsylvania east to the Marcus Hook Industrial Complex, which straddles the Pennsylvania/Delaware border on the Delaware River about 17 miles south of Philadelphia.”

But Guido added that the pipeline may be regulated by both FERC and PUC, therefore “federal pre-emption is not at issue.”

Sunoco’s reaction

Sunoco officials issued the following comment on the judge’s ruling:

“While the court’s decision is consistent with other courts who have looked at the issue for this project, and consistent with the Pennsylvania Public Utility Commission’s determination that this service is a public utility service, we do not view the need to resort to eminent domain as a positive outcome.

“We are confident that our negotiations with landowners will continue to produce agreements that are acceptable to all parties and avoid the condemnation process whenever possible,” the statement continued. “Sunoco Pipeline regards eminent domain as a last resort, for use cautiously only when negotiations with a landowner fail and can impede the successful completion of the project.”

Shields said the company is still negotiating easements in Pennsylvania, West Virginia and Ohio, and there will be approximately 2,500 altogether, he said. The company does not disclose how many easements have already been acquired, Shields added.

“Regarding any appeal, our projected timetable for Mariner East 2 remains unchanged,” he said.

Sunoco Logistics trades on the New York Stock Exchange as SXL.