Recently, Pennsylvania property owners filed two cert petitions (download here and here) asking the U.S. Supreme Court to review this question:
Whether the Hazardous Liquid Pipeline Safety Act (HLPSA)1 preempts the Pennsylvania Public Utility Commission’s (PUC) jurisdiction to issue Certificates of Public Convenience resulting in eminent domain power when the HLPSA states it has exclusive jurisdiction, and when the PUC specifically states it does not have jurisdiction.----------1. Also commonly referred to as the Pipeline Safety Act of 1979 (PSA).
The crux of the argument is that the Pennsylvania PUC and courts were preempted by a federal statute from accepting Sunoco's assertion that its pipeline (which is to run from Ohio to Delaware via the petitioners' Pennsylvania properties) is purely an intrastate pipeline, and not an interstate pipeline as defined in the statute:
Sunoco Pipeline (hereinafter “Sunoco”) seeks to build, and is currently building, an interstate pipeline from Ohio through Pennsylvania to a port in Delaware for the shipping of petroleum products to markets overseas. Sunoco was initially denied eminent domain authority by a trial court in Cumberland County, Pennsylvania because the pipeline was not an “intrastate” pipeline. In an effort to obtain “intrastate” status Sunoco changed their engineering plans to include off-loading and on-loading points within the Commonwealth of Pennsylvania. Petitioner argued that these on-loading and off-loading points were not necessary as required by the takings clause of both the state and federal constitutions as well as per Sunoco’s own admission approximately one year prior; however, the Pennsylvania Public Utility Commission and the Commonwealth Court of Pennsylvania disagreed. By redefining the federal definition of “interstate” the Commonwealth Court of Pennsylvania permitted the use of state eminent domain authority to take private property throughout Pennsylvania.
Pet. at 12.
In both cases, Sunoco has declined to respond, and both petitions are on the Court's schedule for consideration at its conference tomorrow, so we should know the results next week.