We're meeting some deadlines today, so we don't have much time to digest in detail the closely split decision by the Pennsylvania Commonwealth Court in In re Condemnation by Sunoco Pipeline, L.P., No. 1979 C.D. 2015 (July 14, 2016).
The short story is that the majority upheld the power of Sunoco to take private property for a natural gas pipeline against challenges that Sunoco lacked the power to condemn, was not a public PUC-regulated utility, and that the pipeline is interstate and not intrastate.
The court rejected the property owners' arguments that Sunoco's pipeline is interstate, and because the Pa PUC can only regulate intrastate commerce, the pipeline takings are not for public use. Yes, the pipeline itself goes through Ohio and West Virginia, in addition to Pennsylvania, but originally, there were no Pennsylvania "offramps" on the pipeline, and Sunoco's plans initially were for interstate service only. But after objections by property owners, Sunoco installed spigots in Pennsylvania so Pennsylvanians have access to the gas. It didn't do this to get around the objectors, it said, but because a polar vortex made it really cold in Pennsylvania that winter. And Sunoco are good guys, and wanted Pennsylvanians to have access to the natural gas. To the court's majority, this was enough.
Two judges separately dissented, with Judge Brobson arguing that because eminent domain is a privilege, but private property is a right, the courts have a special duty to "closely scrutinize" exercises of the power. "As between the privilege and the right, the right is paramount." He concluded that Sunoco is not a PUC-regulated entity, and did not have the power to take, and that the owners "are justifiably skeptical" because the whole "polar vortex" reason for adding Pennsylvania service was a bit ... shall we say ... convenient, because it turned an admittedly interstate pipeline with no power to take into a PUC entity with the power.
Judge McCullough wrote separately to note that "[t]he assertion that ME2 will have several new 'on and off' ramp locations so as to ostensibly provide intrastate service, is, at the preliminary hearing stage, insufficient to counter the recent representation Sunoco made to the Court of Common Pleas of York County that ME2 was exclusively interstate." She would have sent the case back for more on this.
With a highly polarized appeals court (yeah, bad pun intended), we would not be surprised if the Pennsylvania Supreme Court was asked to weigh in.
More on the decision in this story: "Split Pa. court hands property owners a loss in fight against land seizures for Sunoco pipeline."