In Re: Condemnation by Sunoco Pipeline L.P. ~Appeal of: Homes for America, Inc.
In Re: Condemnation by Sunoco Pipeline L.P. ~Appeal of: Homes for America, Inc. - 565 C.D. 2016
Pa. Commw. Ct.May 24, 2017Background
- Sunoco Pipeline L.P. filed a Declaration of Taking (Aug. 5, 2015) to condemn permanent and temporary easements across Homes for America, Inc.’s property in Lebanon County for the Mariner East 2 pipeline project.
- Mariner East 2 was developed to transport natural gas liquids (NGLs) including propane and ethane; Sunoco repurposed the project after the 2013–14 winter shortages to provide both interstate and intrastate service with on-ramps and off-ramps inside Pennsylvania.
- The Pennsylvania Public Utility Commission (PUC) issued certificates of public convenience (CPCs) and approved tariffs authorizing intrastate movements for Sunoco; FERC has authority over interstate movements.
- Condemnee (Homes for America) raised Preliminary Objections arguing: Sunoco lacks condemnation authority; corporate resolution only authorized interstate use; collateral estoppel from Loper bars Sunoco; Mariner East 2 is not subject to PUC regulation; and Sunoco seeks condemnation for two pipelines though only one was approved by FERC.
- The trial court overruled the Preliminary Objections, finding Mariner East 2 is dually regulated by PUC and FERC, Sunoco is a PUC-regulated public utility with eminent domain power, and collateral estoppel did not apply.
- This Court affirmed the trial court, relying principally on this Court’s prior decision in In re Condemnation by Sunoco Pipeline, L.P., 143 A.3d 1000 (Pa. Cmwlth. 2016) (Sunoco I).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Dual regulation (PUC and FERC) | Mariner East 2 is interstate only; PUC cannot regulate interstate commerce | Sunoco: Mariner East 2 provides both intrastate and interstate service; PUC regulates intrastate shipments while FERC regulates interstate shipments | Court: Dually regulated; Mariner East 2 includes intrastate service subject to PUC and interstate service subject to FERC (affirming Sunoco I) |
| Public utility status | Sunoco is not a public utility because service is interstate and not ‘‘for the public’’ | Sunoco: PUC has certified Sunoco as a public utility and issued CPCs authorizing intrastate service | Court: Issue waived on Preliminary Objections; on merits PUC determinations control — Sunoco is a PUC-regulated public utility |
| Eminent domain power / corporate resolution | Corporate resolution authorizes only an interstate pipeline; Sunoco seeks condemnation for two pipelines though FERC approved one | Sunoco: BCL and Code permit eminent domain where PUC has issued CPCs; resolution describes Mariner East 2 and identifies lands | Court: Sunoco satisfied BCL/Code requirements; CPCs are prima facie evidence of authority; resolution sufficiently describes the taking; eminent domain power exists |
| Collateral estoppel (Loper) | Loper denied Sunoco eminent domain power; that judgment should bar this action | Sunoco: Loper dealt only with interstate/FERC regulation; subsequent PUC approvals added an intrastate component materially changing the issue | Court: Collateral estoppel inapplicable because issues are not identical — Mariner East 2 now includes PUC-regulated intrastate service |
Key Cases Cited
- In re Condemnation by Sunoco Pipeline, L.P., 143 A.3d 1000 (Pa. Cmwlth. 2016) (establishing that Mariner East 2 is dually regulated and that PUC-issued CPCs confer eminent domain power)
- Fairview Water Co. v. Pub. Util. Comm’n, 502 A.2d 162 (Pa. 1985) (PUC determines public need; common pleas decide scope, validity, and damages in eminent domain)
- Pottsville Union Traction Co. v. Pub. Serv. Comm’n, 67 Pa. Super. 301 (Pa. Super. Ct. 1917) (historical authority regarding PUC statutory role)
- Duquesne Light Co. v. Monroeville Borough, 298 A.2d 252 (Pa. 1972) (statewide jurisdiction of PUC over public utilities)
- Foster v. Colonial Assur. Co., 668 A.2d 174 (Pa. Cmwlth. 1995) (elements and application of collateral estoppel)
- Chester Water Auth. v. Pub. Util. Comm’n, 868 A.3d 384 (Pa. 2005) (applicant for CPC must demonstrate public need)