for collateral estoppel to apply, four conditions must be met, the first being that the issue or issue of fact previously determined in a prior action are the same
How later courts described this case
- for collateral estoppel to apply, four conditions must be met, the first being that the issue or issue of fact previously determined in a prior action are the same
- holding in a prospective challenge to the exercise of regulatory jurisdiction by the Michigan Public Service Commission that the federal scheme under the ICA “is not so comprehensive as to address the local interests which are the focus of state regulation.”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Condemnation by Sunoco :
Pipeline L.P. of Permanent and :
Temporary Rights of Way for the :
Transportation of Ethane, Propane, :
Liquid Petroleum Gas, and Other :
Petroleum Products in the Township :
of Union, Huntingdon County, :
Pennsylvania, Over the Lands of :
Stephen Gerhart and Ellen S. Gerhart :
:
Appeal of: Stephen Gerhart and : No. 220 C.D. 2016
Ellen S. Gerhart : Submitted: September 2, 2016
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE COHN JUBELIRER FILED: May 15, 2017
Stephen Gerhart and Ellen S. Gerhart (Condemnees) appeal from the
January 6, 2016 Order of the Court of Common Pleas of Huntingdon County
(common pleas) that overruled Condemnees’ Preliminary Objections (POs) to the
Declaration of Taking (Declaration) filed by Condemnor Sunoco Pipeline L.P.
(Sunoco) to facilitate construction of the second phase of its Mariner East Project
known as the Mariner East 2 pipeline. Condemnees contend that common pleas
erred because the Mariner East 2 pipeline is not in the public interest, Sunoco’s
Declaration is barred under the doctrine of collateral estoppel by an earlier York
County Court of Common Pleas decision, and Sunoco’s bond is inadequate.
This Court recently issued an en banc opinion in In Re: Condemnation by
Sunoco Pipeline, L.P., 143 A.3d 1000 (Pa. Cmwlth.), petition for allowance of
appeal denied, (Pa., Nos. 571, 572, 573 MAL 2016, filed December 29, 2016)
(Sunoco I), which decided a majority of the issues which Condemnees raise here.
After careful review of the record in this case, and consistent with our decision in
Sunoco I, we find no error in common pleas’ Order and therefore affirm.
I. Background of the Instant Appeal
On July 21, 2015, Sunoco filed a Declaration seeking a permanent easement
of 1.72 acres and temporary workspace easements totaling 1.44 acres over portions
of Condemnees’ 27-acre property located along Trough Creek Valley Pike in
Union Township, Huntingdon County. (R.R. at 1b-15b.)1 Sunoco seeks the
easements for its planned Mariner East 2 pipeline. (R.R. at 13b.) On August 20,
2015, Condemnees filed POs to Sunoco’s Declaration. (R.R. at 1c-7c.) Following
an evidentiary hearing on the POs on November 3, 2015, common pleas issued an
Order on January 6, 2016, overruling all of Condemnees’ POs. (R.R. at 1l-2l.)
This appeal followed.2
1
Condemnees did not strictly follow Rule 2173 of the Pennsylvania Rules of Appellate
Procedure that the reproduced record be numbered using Arabic figures followed by a small a,
and any supplemental reproduced record being followed by a small b. Instead Condemnees used
Arabic figures followed by different letters for different sections of the reproduced record.
2
In an eminent domain case disposed on preliminary objections, this Court is limited to
determining if common pleas’ necessary findings of fact are supported by competent evidence or
if an error of law or an abuse of discretion was committed. Stark v. Equitable Gas Co., LLC, 116
A.3d 760, 765 n.8 (Pa. Cmwlth. 2015).
2
A. Evidence presented before Common Pleas
1. Regulation of Sunoco as a Public Utility
The record made before common pleas shows that Sunoco has operated as a
public utility in Pennsylvania since 2002. (R.R. at 1b-9b.) At that time, Sunoco
acquired the assets of Sun Pipe Line Company (Sun) and Atlantic Pipeline
Corporation (Atlantic), which included an existing integrated pipeline system.
(Id.) Sun and Atlantic were public utilities under PUC’s jurisdiction, and upon
application by Sunoco, PUC issued a Certificate of Public Convenience (CPC)
approving Sunoco to transport petroleum products and refined petroleum products
as a public utility in Sun’s and Atlantic’s former service territory (between
Delmont, Westmoreland County and Twin Oaks, Delaware County, which territory
includes Huntingdon County). (R.R. at 16b-31b.) When it issued the CPC, PUC
found that the transfer of assets to Sunoco “provides an affirmative public benefit”
and is “necessary or proper for the service, accommodation, convenience, or safety
of the public, and that [Sunoco’s] application is in the public interest and should be
approved.” (R.R. at 21b-22b.)
2. The Mariner East Project
Sunoco planned the Mariner East Project to transport natural gas liquids
(NGLs)3 such as propane, ethane, and butane within the service territory authorized
3
According to the United States Energy Information Administration:
Natural gas liquids (NGLs) are hydrocarbons—in the same family of molecules as
natural gas and crude oil, composed exclusively of carbon and hydrogen. Ethane,
propane, butane, isobutane, and pentane are all NGLs . . . NGLs are used as inputs
for petrochemical plants, burned for space heat and cooking, and blended into
vehicle fuel . . . .
(Continued…)
3
by the 2002 CPC. (R.R. at 3b.) The Mariner East Project consists of multiple
phases, and the overall goal is to relieve the oversupply of NGLs in the Marcellus
and Utica Shale Basins and to remedy propane shortages in Pennsylvania and in
the Northeast. (Id.)
Sunoco initially intended the Mariner East Project to prioritize interstate
service. The first phase, known as Mariner East 1, was designed to transport NGLs
from the Marcellus and Utica Basins east to the Marcus Hook Industrial Complex
(MHIC) located in both Delaware County and in Claymont, Delaware. (Id.)
However, the record indicates that Sunoco also contemplated the intrastate
transportation of propane for delivery to Pennsylvania customers. (Id.) During the
completion of Mariner East 1, Sunoco experienced a significant increase in
demand for intrastate shipments of propane, driven by local consumer demand.
(Id.) The record further reflects that harsh winter conditions experienced in the
2013-14 winter season, combined with a pipeline infrastructure deficit, led to
propane shortages and changing market conditions. (Id.) Because of this, Sunoco
accelerated its plans to provide intrastate shipments of propane, in addition to
interstate shipments of propane and ethane, through the Mariner East Project. (Id.)
This increased focus on intrastate shipments is the driver for the second
phase of Sunoco’s Mariner East Project, Mariner East 2. (R.R. at 3b-9b.) Mariner
The chemical composition of these hydrocarbons is similar, yet their applications
vary widely. Ethane occupies the largest share of NGL field production. It is
used almost exclusively to produce ethylene, which is then turned into plastics.
Much of the propane, by contrast, is burned for heating, although a substantial
amount is used as petrochemical feedstock . . . .
United States Energy Information Administration, Today in Energy, April 20, 2012, available at
http://www.eia.gov/todayinenergy/detail.cfm?id=5930&src=email (last visited May 11, 2017).
4
East 2 will consist of pipelines with access points in Ohio, West Virginia, and
Pennsylvania; product will be placed into a pipeline (“on-ramps”), and there will
be multiple exit points within Pennsylvania where product will be removed from
the pipeline (“off-ramps”). Mariner East 2 generally will run parallel to the
Mariner East 1 line. The Mariner East project (through Mariner East 1 and
Mariner East 2) will transport petroleum products in Sunoco’s certificated areas as
an integrated service.4
3. PUC Orders and Tariffs
The record before common pleas contains references to several PUC
proceedings initiated by Sunoco when its focus for the Mariner East Project moved
from interstate to intrastate transportation of NGLs after winter 2013-14. (R.R. at
3b-9b.) These proceedings, and the resulting PUC orders, include the following
actions: by Order dated July 24, 2014, PUC reaffirmed Sunoco’s authority to
transport petroleum products between Delmont, Westmoreland County, and Twin
Oaks, Delaware County, (R.R. at 32b-42b); by Order dated August 21, 2014, PUC
4
See the PUC’s August 21, 2014 Order, which states:
Subject to continued shipper interest, Sunoco intends to undertake a
second phase of the Mariner East project, which will expand the capacity of the
project by constructing: (1) a 16 inch or larger pipeline, paralleling its existing
pipeline from Houston, PA to the Marcus Hook Industrial Complex and along
much of the same route, and (2) a new 15 miles of pipeline from Houston, PA to a
point near the Pennsylvania-Ohio boundary line. This second phase, sometimes
referred to as “Mariner East 2”, will increase the take-away capacity of natural
gas liquids from the Marcellus Shale and will enable Sunoco to provide additional
on-loading and off-loading points within Pennsylvania for both intrastate and
interstate propane shipments.
(R.R. at 50b-51b.)
5
approved a tariff for Sunoco’s west-to-east intrastate movement of propane from
Mechanicsburg, Cumberland County, to Twin Oaks, (R.R. at 43b-47b); by Order
dated August 21, 2014, PUC granted Sunoco a CPC authorizing it to provide
intrastate transportation service of petroleum products in Washington County,
which expanded the service territory in which Sunoco is authorized to provide its
Mariner East service, (R.R. at 48b-53b); by Order dated January 15, 2015, PUC
approved a tariff for Sunoco’s west-to-east intrastate movement of propane,
reflecting a new origin point of Houston, Washington County, (R.R. at 54b-58b);
and by Order dated March 26, 2015, PUC approved a supplemental tariff for
intrastate shipments from Delmont, Westmoreland County to Twin Oaks,
Delaware County, (R.R. at 59b-62b).
B. Common Pleas’ January 6, 2016 Order and 1925(a) Opinion
After a hearing on Condemnees’ POs, common pleas on January 6, 2016
issued an Order overruling those POs in their entirety, finding as follows:
1. Sunoco Pipeline L.P. is a public utility, and as such, is
appropriately regulated by the Pennsylvania Public Utility
Commission.
2. The proposed Mariner 2 East pipeline will provide both
intrastate and interstate service for the transportation of petroleum
products.
3. The regulation of Sunoco Pipeline L.P. by the Pennsylvania
Public Utility Commission is not preempted by federal law.
4. Sunoco Pipeline L.P. does have the statutory power of eminent
domain.
5. The bond posted by Sunoco Pipeline L.P. is adequate pursuant
to the evidence presented.
6
(R.R. at 1l-2l.)
Upon the filing by Condemnees of their appeal to this Court, common pleas
directed the filing of a Concise Statement of Errors Complained of on Appeal
(Statement) pursuant to Rule 1925(b) of the Pennsylvania Rules of Appellate
Procedure, Pa. R.A.P. 1925(b),5 after which common pleas on March 31, 2016,
issued its Opinion in support of its January 6, 2016 Order. (R.R. at 3l-8l.)
As to whether Sunoco is a public utility regulated by PUC, common pleas
held that Sunoco’s 2002 acquisition of Sun and Atlantic included those entities’
CPCs, and that the PUC Orders granting CPCs and tariffs identified above
demonstrated that PUC is regulating Sunoco’s Mariner East pipelines. (Common
pleas’ Op. at 1-2.) As to whether the proposed Mariner East 2 pipeline will
provide both interstate and intrastate service, common pleas held that Sunoco
proved that the pipeline would provide intrastate service through the addition of
on-ramps and off-ramps within the Commonwealth. (Id. at 2.) Addressing
Condemnees’ argument that Sunoco did not provide any PUC Orders approving
the Mariner East 2 pipeline, common pleas noted that “PUC [CPCs] are not
pipeline-specific; they are issued for a service in a certificated area” and that “[a]s
such, PUC does not require Sunoco . . . to apply for approval for the proposed
5
Pa. R.A.P. 1925(b) provides as follows:
Rule 1925. Opinion in Support of Order
***
(b) Direction to file statement of errors complained of on appeal;
instructions to the appellant and the trial court.--If the judge entering the order
giving rise to the notice of appeal (“judge”) desires clarification of the errors
complained of on appeal, the judge may enter an order directing the appellant to
file of record in the trial court and serve on the judge a concise statement of the
errors complained of on appeal (“Statement”).
Id.
7
Mariner East 2 pipeline.” (Id.) While noting PUC’s August 21, 2014 Order,
quoted above in footnote 3, common pleas further observed that:
A taking can be public even though there is private enterprise
involved. In re Land Along Woodside Rd., [] 617 A.2d 74 (Pa.
[Cmwlth.] 1992). The PUC already has determined Sunoco[]’s
service is for a public need in past orders.[] Condemnor’s Ex. 6.
The Court heard testimony about the polar vortex during winter of
2013 that led to a desire to move intrastate products, and what became
an increase in shipper and local demand for propane. Sunoco []
proved that shippers were not efficiently getting their propane by
“truck and rail.” The proposed Mariner East 2 pipeline will efficiently
move products and remove about 500 tractor trailer loads per day
from the highway.
While Sunoco [] did not provide any final PUC orders that clearly
determined it was for the public, the PUC has provided, through its
orders, that the pipeline service is for the public benefit. See, e.g.,
Condemnor’s Ex. 6, p. 3-4.
(Common pleas’ Op. at 2-3 (footnote omitted).)
Common pleas next addressed Condemnees’ argument that PUC regulation
of the Mariner East Project is preempted by federal law and held that the Federal
Energy Regulatory Commission (FERC) regulates interstate service and PUC
regulates intrastate service. Since each agency regulates a different aspect of the
pipeline service, common pleas held that there is no preemption by federal law of
PUC’s regulatory authority. (Id. at 3-4.)
As to whether Sunoco is clothed with the statutory power of eminent
domain, common pleas noted that PUC has found the Mariner East Project to be a
public benefit, found that Condemnees failed to present evidence that Sunoco was
8
not a public utility under the Business Corporation Law of 1988 (BCL),6 and noted
that Sunoco met the requirements for a public utility corporation under the BCL.7
Condemnees also argued that Sunoco’s Declarations were barred by collateral
estoppel under Sunoco Pipeline, L.P. v. Loper, 2013-SU-4518-05 (C.P. York,
February 24, 2014) (reaffirmed March 25, 2014), in which the court held that the
Mariner East 2 pipeline was regulated by FERC as an interstate service and that
Sunoco thus lacked the power of eminent domain. Common pleas found that,
subsequent to the Loper decision, Sunoco added an intrastate component to the
Mariner East Project, whereas in Loper the project solely provided interstate
service. Common pleas, therefore, held that collateral estoppel did not apply to bar
Sunoco’s Declarations. (Common pleas’ Op. at 4-5.) Common pleas further stated
that it would not address whether it erred when it did not direct Condemnees’ POs
to PUC to determine whether the Mariner East Project serves a public need
because Condemnees did not raise this issue in their POs. (Id. at 5-6.)
C. Issues Raised on Appeal
On appeal, Condemnees argue that: 1) Mariner East 2 imparts no public
benefit justifying eminent domain power, in part because Mariner East 1
adequately meets public demand; 2) Sunoco’s Declaration is barred under the
doctrine of collateral estoppel by the earlier York County decision in Loper, which
6
15 Pa. C.S. §§ 1101-9507.
7
Section 1511(a)(2) of the BCL, 15 Pa. C.S. § 1511(a)(2), provides that “public utility
corporations” may exercise the power of eminent domain to condemn property for the
transportation of, inter alia, natural gas and petroleum products. Section 1103 of the BCL, 15
Pa. C.S. § 1103, defines public utility corporation as “[a]ny domestic or foreign corporation for
profit that . . . is subject to regulation as a public utility by the [PUC] or an officer or agency of
the United States . . . .” FERC is an agency of the United States that may regulate an entity as a
public utility under this section.
9
found Mariner East 2 is an interstate pipeline; and 3) Sunoco’s bond is inadequate.8
In addition, during the pendency of this appeal, the Pennsylvania Supreme Court
rendered its decision in Robinson Township v. Commonwealth, 147 A.3d 536 (Pa.
2016) (Robinson IV), which found Section 3241 of Act 13, 58 Pa. C.S. § 3241,
unconstitutional as it relates to the ability of a corporation to take private property
for a private purpose. In light of this decision, Condemnees sought to file a
supplemental brief to address Robinson IV and its potential impact on this case,
which this Court granted. Supplemental briefs were filed by Condemnees and
Sunoco on January 12, 2017 and January 27, 2017, respectively. This matter is
now ripe for disposition.9
As discussed more fully below, the first two issues raised by Condemnees
were decided by this Court in Sunoco I, which involved three appeals from the
order of the Court of Common Pleas of Cumberland County overruling
Preliminary Objections to Declarations of Taking filed by Sunoco to facilitate
construction of the Mariner East 2 pipeline. As in the case at bar, condemnees in
Sunoco I asserted that the common pleas court erred because no public need
existed for the Mariner East 2 pipeline and Sunoco’s Declaration was barred under
the doctrine of collateral estoppel by the earlier York County decision in Loper and
therefore the Mariner East 2 pipeline was not an intrastate pipeline subject to PUC
8
Condemnees did not reference the adequacy of the bond posted by Sunoco in their
1925(b) Statement.
9
Aside from the parties, numerous other entities filed briefs as amici curiae, including the
Clean Air Council (CAC), PUC, and Association of Oil Pipelines (AOPL). CAC’s arguments
generally align with Condemnees’ argument that there is no public need for the project. PUC
argues its prior determinations, which resulted in the issuance of CPCs, are final and binding on
the public need issue, and therefore are not subject to collateral attack. AOPL urges that FERC
and PUC exercise concurrent jurisdiction over the project, which is consistent with nationwide
practice.
10
regulation. The record made before common pleas in the case at bar contains
virtually the same testimony by Sunoco witnesses and the same exhibits germane
to the Mariner East Project, including PUC’s Orders, as in the record in Sunoco I.
Because our recent en banc decision in Sunoco I controls our analysis of those
issues common to both sets of appeals, we will begin with a brief discussion of
Sunoco I.
II. Sunoco I
In Sunoco I, condemnees therein asserted that the Mariner East 2 pipeline
was not an intrastate pipeline subject to PUC regulation. However, based on our
review of the record, including PUC Orders related to the Mariner East Project,
FERC’s decision in Amoco Pipeline, Co., 62 F.E.R.C. ¶ 61119, at 61803-61804,
1993 WL 25751, at *4 (Feb. 8, 1993) (finding that “the commingling of oil streams
is not a factor in fixing jurisdiction under the [Interstate Commerce Act (ICA)]”),
and other related authority,10 we concluded that the service to be provided by the
10
See also National Steel Corp. v. Long, 718 F. Supp. 622, 625 (W.D. Mich.
1989) (holding in a prospective challenge to the exercise of regulatory jurisdiction
by the Michigan Public Service Commission that the federal scheme under the
ICA “is not so comprehensive as to address the local interests which are the focus
of state regulation.”); Humble Oil & Refining Co. v. Tex. & Pac. Ry. Co., 289
S.W.2d 547 (Tex. 1955) (where shipper produced oil in New Mexico and Texas
and delivered it by pipeline to a Texas tank farm where it was commingled and
shipped by rail to various destinations, the shipper accepting at destination the
equivalent of oil delivered to farm, that portion of oil shipped which was
equivalent in volume to that produced in New Mexico was subject to interstate
rate, while that portion equivalent in volume to that produced in Texas was
subject to intrastate rate.); Removing Obstacles to Increased Elec. Generation &
Natural Gas Supply in the W. United States, 94 F.E.R.C. ¶¶ 61272, 61977 (Mar.
14, 2001) (FERC authority limited to regulating terms and rates of interstate
shipments on a proposed line).
(Continued…)
11
Mariner East 2 pipeline will involve both interstate service (subject to FERC
regulation)11 and intrastate service (subject to PUC regulation). Sunoco I, 143
A.3d at 1004-05. On that basis we held that Sunoco is a public utility corporation
empowered to exercise eminent domain under the BCL. Id. at 1016.12
Sunoco I, 143 A.3d at 1005.
11
See, e.g., 42 U.S.C. § 7155; 42 U.S.C. § 7172(b) (transferring authority
conferred by ICA upon the Interstate Commerce Commission (ICC) to regulate
pipeline transportation of oil to FERC); 49 U.S.C. § 60502 (regarding FERC
jurisdiction over rates for the transportation of oil by pipeline formerly vested in
the ICC). According to its website, FERC is an independent agency that among
other duties regulates the interstate transmission of electricity, natural gas and oil.
The website further notes that many areas beyond FERC’s jurisdiction are within
the province of state public utility commissions. Federal Energy Regulatory
Commission, What FERC Does, available at http://ferc.gov/about/ferc-does.asp
(last visited [May 11, 2017]).
Sunoco I, 143 A.3d at 1004 n.5.
12
Earlier in Sunoco I, we reviewed the regulation of public utilities by PUC and by
FERC and stated that:
Jurisdiction over the certification and regulation of public utilities in the
Commonwealth is vested in PUC through the Public Utility Code (Code).[]
However, simply being subject to PUC regulation is insufficient for an entity to
have the power of eminent domain. Section 1104 of the Code, 66 Pa. C.S. §
1104, requires that a public utility must possess a [CPC] issued by PUC pursuant
to Section 1101 of the Code, 66 Pa. C.S. § 1101, before exercising the power of
eminent domain.[]
Both FERC and PUC regulate the shipments of natural gas and petroleum
products or service through those pipelines, and not the actual physical pipelines
conveying those liquids. [] FERC’s jurisdiction is derived from the [ICA] and
applies to interstate movements,[] while the Code and PUC’s jurisdiction apply to
intrastate movements.[] This jurisdiction is not mutually exclusive. See, e.g.,
Amoco Pipeline, Co., 62 F.E.R.C. ¶ 61119, at 61803-61804, 1993 WL 25751, at
*4 (Feb. 8, 1993) (finding that “the commingling of oil streams is not a factor in
fixing jurisdiction under the ICA”); [] . . . .
(Continued…)
12
The Sunoco I condemnees also argued that the Mariner East 2 pipeline did
not provide service regulated by PUC because PUC’s Orders did not cover service
on the Mariner East 2 pipeline and PUC did not issue a CPC for Mariner East 2
because it provides interstate commerce. In Sunoco I, we reviewed the same
PUC’s orders and tariffs contained in the record in this matter and found as
follows:
The record reflects that Sunoco, on June 9, 2014, applied to PUC to
expand its service territory for the Mariner East Project, including
Mariner East 2, into Washington County, the only service territory not
previously certificated for Mariner East service by prior CPCs. By
Order dated August 21, 2014, PUC granted the application
authorizing Sunoco’s provision of intrastate petroleum and refined
petroleum products pipeline transportation service in Washington
County thus expanding Sunoco’s service territory for its Mariner East
service. PUC’s Order accompanying the CPC described the
authorized service, and specifically described Mariner East 2 service
as an expansion of existing Mariner East 1 service. The result of this
Order is that PUC authorized Mariner East 1 and Mariner East 2
intrastate service in 17 counties, from Washington County in western
Pennsylvania, through 15 other counties . . . to Delaware County in
eastern Pennsylvania.
Subsequently, in its October 29, 2014 Order, PUC stated that:
Sunoco I, 143 A.3d at 1003-04 (footnotes and record citations omitted.) From this we
concluded that:
. . . it is apparent from these authorities that it is PUC, and not FERC, that has
authority to regulate intrastate shipments. Similarly, the record shows that
pipeline service operators in Pennsylvania, such as Sunoco, can be, and frequently
are, simultaneously regulated by both FERC and PUC through a regulatory rubric
where FERC jurisdiction is limited only to interstate shipments, and PUC’s
jurisdiction extends only to intrastate shipments. []
Id. at 1005 (record citation omitted.)
13
[T]his authority [under existing CPCs] is not limited to a specific pipe
or set of pipes, but rather, includes both the upgrading of current
facilities and the expansion of existing capacity as needed for the
provision of the authorized service within a certificated territory.
From these PUC Orders we conclude that Sunoco’s CPCs apply to
both Mariner East 1 service and to Mariner East 2 service, as it is an
authorized expansion of the same service. In addition, Sunoco’s
approved tariffs proposed to add the new origin point of Houston,
Washington County for west-to-east intrastate movements of propane,
based on the CPCs issued. On these bases, we hold that common
pleas did not err when it concluded that “PUC regulates intrastate
shipments of NGL[s,]” including service provided by Mariner East 2,
and that “[a]s a result, [Sunoco] has the power of eminent domain to
condemn property for the construction of [Mariner East 2].”
(December 22, 2015 Op. at 4.)
Sunoco I, 143 A.3d at 1016-17 (emphasis and record citations omitted.)
The Sunoco I condemnees next argued that Sunoco failed to demonstrate a
public need for the Mariner East 2 pipeline before the Cumberland County court.
The condemnees argued that PUC approval of a service is only a preliminary step,
and it was the responsibility of the common pleas court in an eminent domain
proceeding to review the public need and to make a determination of the scope and
validity of the condemnation for the Mariner East 2 pipeline. Id. at 1017.
As to the PUC’s jurisdiction, we stated:
the [Public Utility] Code [(Code)] charges PUC with responsibility to
determine which entities are public utilities and to regulate how public
utilities provide public utility service. This has long been the statutory
mandate. See, e.g., Pottsville Union Traction Co. v. Pennsylvania
Public Service Comm’n, 67 Pa. Super. 301 (1917). It is beyond
purview that the General Assembly intended PUC to have statewide
jurisdiction over public utilities and to foreclose local public utility
regulation. Duquesne Light Co. v. Monroeville Borough, 298 A.2d
252 (Pa. 1972).
14
As previously described, in the public utility context, an entity must
meet separate but related requirements set forth in both the BCL and
the Code to be a public utility corporation clothed with the power of
eminent domain. Section 1511(a)(2) of the BCL provides that “public
utility corporations” may exercise the power of eminent domain to
condemn property for the transportation of, inter alia, natural gas and
petroleum products. Section 1103 of the BCL defines public utility
corporation as “[a]ny domestic or foreign corporation for profit that
. . . is subject to regulation as a public utility by the [PUC] . . . .” 15
Pa. C.S. § 1103. Section 1104 of the Code requires that a public
utility must possess a CPC issued by PUC pursuant to Section 1101 of
the Code before exercising eminent domain. While courts of common
pleas have jurisdiction to review whether an entity attempting to
exercise eminent domain power meets the BCL criteria, that
jurisdiction does not include the authority to revisit PUC
adjudications. A CPC issued by PUC is prima facie evidence that
PUC has determined that there is a public need for the proposed
service and that the holder is clothed with the eminent domain power.
This Court has stated “[t]he administrative system of this
Commonwealth would be thrown into chaos if we were to hold that
agency decisions, reviewable by law by the Commonwealth Court, are
also susceptible to collateral attack in equity in the numerous common
pleas courts.” Aitkenhead v. Borough of West View, 442 A.2d 364,
367 n.5 (Pa. Cmwlth. 1982).
Sunoco I, 143 A.3d at 1017-18.
We next examined the role of common pleas courts under the Eminent
Domain Code,13 which governs process and procedure in condemnation
proceedings, and stated that:
The Eminent Domain Code does not permit common pleas to review
the public need for a proposed service by a public utility that has been
authorized by PUC through the issuance of a CPC. In Fairview Water
Co. v. [Pa.] Public Utility Comm’n, 502 A.2d 162 ([Pa.] 1985), our
Supreme Court discussed the proper forum for a condemnee’s
challenge to the legality of a taking when a public utility attempts to
condemn an easement and PUC has determined that condemnee’s
property is necessary for the utility service. The case stemmed from a
dispute between Fairview and a power company over the power
13
26 Pa. C.S. §§ 101-1106.
15
company’s continuing use of an easement previously agreed to by the
parties. Id. at 163. The power company filed an application with
PUC requesting a finding and determination that its transmission line
was necessary and proper for the service, accommodation,
convenience, or safety of the public. A PUC Administrative Law
Judge determined that the service was necessary and proper and also
determined the scope and validity of the easement. This court
affirmed. On appeal, Fairview argued that PUC lacked jurisdiction to
determine the scope and validity of the easement. Id. at 163-64. The
Supreme Court agreed and stated: “[o]nce there has been a
determination by the PUC that the proposed service is necessary and
proper, the issues of scope and validity and damages must be
determined by a Court of Common Pleas exercising equity
jurisdiction.” Id. at 167. As Sunoco here holds CPCs issued by PUC
and PUC in its Orders issuing the CPCs found the authorized service
to be necessary and proper, it is left to common pleas to evaluate
scope and validity of the easement, but not the public need.
As illustrated by Fairview, determinations of public need for a
proposed utility service are made by PUC, not the courts. Section
1103 of the Code requires an applicant for a CPC to establish that the
proposed service is “necessary or proper for the service,
accommodation, convenience, or safety of the public.” 66 Pa. C.S. §
1103(a). Under this section, the applicant must “demonstrate a public
need or demand for the proposed service . . . .” Chester Water Auth.
v. [Pa.] Public Utility Comm’n, 868 A.2d 384, 386 ([Pa.] 2005)
(emphasis added).[]
Sunoco I, 143 A.3d at 1018-19 (footnote and emphasis omitted.)
Specific to PUC Orders issued regarding the Mariner East project, we noted
that PUC’s July 24, 2014 Order found that the intrastate pipeline service proposed
by Sunoco would result in “numerous potential public benefits” by allowing
Sunoco “to immediately address the need for uninterrupted deliveries of propane in
Pennsylvania and to ensure that there is adequate pipeline capacity to meet peak
demand for propane during the winter heating season.” Id. at 1019. We noted
further that in its August 21, 2014 Order authorizing the provision of intrastate
16
petroleum and refined petroleum products pipeline transportation service in
Washington County, PUC stated that:
[W]e believe that approval of this Application is necessary and proper
for the service, accommodation, and convenience of the public. We
believe granting Sunoco authority to commence intrastate
transportation of propane in Washington County will enhance
delivery options for the transport of natural gas and natural gas
liquids in Pennsylvania. In the wake of the propane shortage
experienced in 2014, Sunoco’s proposed service will increase the
supply of propane in markets with a demand for these resources,
including in Pennsylvania, ensuring that Pennsylvania’s citizens enjoy
access to propane heating fuel. Additionally, the proposed service
will offer a safer and more economic transportation alternative for
shippers to existing rail and trucking services.
Id.
We held that “there is no basis for a common pleas court to review a PUC
determination of public need,” and that “to allow such review would permit
collateral attacks on PUC decisions and be contrary to Section 763 of the Judicial
Code, 42 Pa. C.S. § 763, which places review of PUC decisions within the
jurisdiction of this Court.” Sunoco I, 143 A.3d at 1019.
Finally, as in the case at bar, condemnees in Sunoco I argued that Sunoco’s
declarations of taking were barred by collateral estoppel based on the York County
Court of Common Pleas’ decision in Loper. At issue in Loper was whether
Sunoco satisfied the definition of “public utility corporation” in the BCL, as a
result of the regulation of its interstate service by FERC. At the time Loper was
decided, Sunoco had not yet sought or obtained PUC approval to provide intrastate
service. The Loper court addressed only whether Sunoco was a public utility
corporation because it was subject to regulation as a public utility by an officer or
agency of the United States, i.e., FERC, and did not decide whether Sunoco was a
17
public utility corporation because it was subject to regulation as a public utility by
PUC. The record in Sunoco I showed that, subsequent to the Loper decision and
after the polar vortex in 2013-14, Sunoco repurposed Mariner East 2 to be both an
interstate pipeline, as well as an intrastate pipeline subject to PUC regulation.
Sunoco filed its declarations of taking in Cumberland County as a public utility
corporation subject to regulation as a public utility by PUC. As the question before
the Cumberland County court and on appeal to this Court was whether Sunoco was
subject to regulation as a public utility by PUC because the Mariner East 2 pipeline
was also an intrastate service, we concluded that the issue decided in Loper was
not the same as in Sunoco I, and hence that collateral estoppel did not bar Sunoco’s
declarations of taking. Sunoco I, 143 A.3d at 1014-15; see Thompson v. Karastan
Rug Mills, 323 A.2d 341, 343 (Pa. Super. 1974) (for collateral estoppel to apply,
four conditions must be met, the first being that the issue or issue of fact previously
determined in a prior action are the same).
III. Issues Now Before this Court
As stated above, Condemnees raise a number of issues on appeal, some of
which were directly addressed by the Court in Sunoco I, and some of which,
although not directly addressed, are still foreclosed by this Court’s decision in
Sunoco I. We discuss these issues, in turn, below.
A. Public Interest/Need and Jurisdiction of Courts of Common Pleas
and PUC
Condemnees argue that the Mariner East 2 Pipeline is not in the public
interest and that Sunoco’s attempted condemnation should be transferred to the
PUC for a determination of the public interest and necessity for the pipeline. We
18
addressed the public interest issue in Sunoco I in the context of the assertion that
the Cumberland County court should have heard evidence and ruled on the public
necessity for the Mariner East 2 pipeline and noted that PUC found in several
orders that Sunoco’s proposed Mariner East 1 and 2 pipelines would result in
public benefits and that it was necessary and proper for the public convenience. As
PUC already has concluded that the Mariner East Project would result in public
benefits and that it was necessary and proper for the public convenience,14
Condemnees’ assertion that common pleas should have referred the Declaration to
the PUC for an evaluation of the public necessity of the Mariner East 2 pipeline is
contrary to the record in this matter and to Sunoco I.
As part of a sub-argument related to public need, Condemnees argue that
Property Rights Protection Act, 26 Pa. C.S. §§ 201-204, (PRPA) prevents the
condemnation of their property because Sunoco is a private corporation seeking to
condemn land for private enterprise. However, in Sunoco I, based upon essentially
the same record as was before common pleas in this matter, we held that Sunoco is
a public utility regulated by PUC.15 As PRPA expressly exempts a “public utility”
14
Condemnees argue in various ways that Sunoco and/or PUC have failed to establish a
“public need” for the Mariner East 2 pipeline. Sunoco argues that this argument was waived as it
was not raised in Condemnees’ POs. As common pleas discussed public benefit in its opinion in
support of its Order, it is not clear that the public need argument is waived. However, we need
not decide the waiver issue as we held in Sunoco I that the record established a demonstration of
public need. 143 A.3d at 1019-20. Given that the record here is virtually identical to the record
in Sunoco I, this record also establishes public need.
15
To the extent Condemnees argue that common pleas erred when it concluded that the
Mariner East 2 pipeline is both an interstate and intrastate service subject to dual regulation by
FERC and PUC and/or that the PUC Orders and CPCs cover service of the Mariner East 2
pipeline, those arguments were also previously rejected in Sunoco I, as summarized in Part II,
supra.
19
as defined in Section 102 of the Code, 66 Pa. C.S. § 102,16 from the general
prohibition against taking property for “private enterprise,”17 we conclude that
PRPA does not bar Sunoco’s Declaration for Condemnees’ property and therefore
affirm common pleas on this issue.
16
Section 102 of the Code defines public utility as
(1) Any person or corporations now or hereafter owning or operating in this
Commonwealth equipment or facilities for:
***
(v) Transporting or conveying natural or artificial gas, crude oil, gasoline, or
petroleum products, materials for refrigeration, or oxygen or nitrogen, or other
fluid substance, by pipeline or conduit, for the public for compensation.
66 Pa. C.S. § 102.
17
PRPA Section 204 provides:
Eminent domain for private business prohibited.
(a) Prohibition. --
Except as set forth in subsection (b), the exercise by any condemnor of the
power of eminent domain to take private property in order to use it for private
enterprise is prohibited.
(b) Exception. --
Subsection (a) does not apply if any of the following apply:
***
(2) The property is taken by, to the extent the party has the power of
eminent domain, transferred or leased to any of the following:
(i) A public utility or railroad as defined in 66 Pa.C.S. § 102
(relating to definitions).
****
26 Pa. C.S. § 204.
20
Also subsumed in the public need argument is Condemnees’ claim that the
Pennsylvania Supreme Court’s recent decision in Robinson IV, striking down a
portion of Act 13 that permitted a corporation to take private property for private
purposes as unconstitutional, reaffirms that Sunoco cannot condemn the
Condemnees’ property absent a finding that the public is the “primary and
paramount beneficiary.”18 Sunoco, on the other hand, argues Robinson IV does not
address the legality of eminent domain exercised by public utilities certificated and
regulated by the PUC; rather, Robinson IV is limited to private, non-regulated
corporations. We agree.
In Robinson IV, the Pennsylvania Supreme Court examined whether Section
3241 of Act 13, 58 Pa. C.S. § 3241, was constitutional. Section 3241(a) provides
that “‘a corporation empowered to transport, sell or store natural gas or
manufactured gas in this Commonwealth’” has the right to “‘appropriate an interest
in real property located in a storage reservoir or reservoir protective area for
injection, storage and removal from storage of natural gas or manufactured gas in a
stratum which is or previously has been commercially productive of natural gas.’”
Robinson IV, 147 A.3d at 544 (quoting 58 Pa. C.S. § 3241(a)). The Supreme
18
In their supplemental brief, Condemnees also argue the Environmental Rights
Amendment, Pa. Const., art. I, § 27, (ERA), has been violated. In particular, Condemnees, as
well as amicus CAC, argue that the pipeline should not be built until the project has been
assessed and permitted by the Commonwealth’s resource agencies. As this argument has never
been raised in their POs or their statement of matters complained of on appeal, and because it
centers on an injunctive order that was never appealed, we are constrained to agree with Sunoco
that the issue is waived. We note, however, that recently the Department of Environmental
Protection recently approved a number of Chapter 105 water obstruction and encroachment
permits and Chapter 102 erosion and sediment control (E&S) permits. See Department of
Environmental Protection, Mariner East Pipeline II, available at http://www.dep.pa.gov/Business
/ProgramIntegration/Pennsylvania-Pipeline-Portal/Pages/Mariner-East-II.aspx (last visited May
11, 2017).
21
Court rejected this Court’s interpretation of Section 3241, that the statute only
allowed public utilities with a CPC to exercise the power of eminent domain,
concluding, instead, that the statute permitted any corporation to do so. Id. at 587.
It was for this reason that the Supreme Court struck down Section 3241 as
unconstitutional on its face.19 Importantly, the Supreme Court recognized that
public utilities “have long been permitted the right to exercise powers of eminent
domain conferred on them by the Commonwealth in furtherance of the overall
public good.” Id. (citation omitted).
As stated in Sunoco I, and reiterated herein, Sunoco is a PUC-certificated
public utility. As such, the PUC already determined a public purpose exists that
permits Sunoco to exercise its eminent domain powers. See 66 Pa. C.S. § 1103(a)
(“A certificate of public convenience shall be granted by order of the commission,
only if the commission shall find or determine that the granting of such certificate
is necessary or proper for the service, accommodation, convenience, or safety of
the public.”)
It is not for this Court to second guess the PUC’s prior determinations. As
the PUC pointed out in its amicus brief, no one, including Condemnees, appealed
its prior issuances of CPCs to Sunoco. Moreover, the time period to challenge
19
The dissent urges that this case be remanded to the trial court to determine the impact,
if any, of Robinson IV, as our Court did in Hughes v. UGI Storage Company (Pa. Cmwlth., No.
629 C.D. 2016, filed March 13, 2017) and Albrecht v. UGI Storage Company (Pa. Cmwlth., No.
630 C.D. 2016, filed March 13, 2017). However, in Hughes and Albrecht, the condemnor’s
power of condemnation arose from Section 3241 of Act 13, which is the very provision that our
Supreme Court struck down as unconstitutional in Robinson IV. Although the would-be
condemnors in Hughes and Albrecht also relied on the Code and BCL, unlike Sunoco, here, they
were not certificated. Because Sunoco is a PUC-certificated public utility and its eminent
domain powers arise from the Code and BCL, not Act 13, the decision in Robinson IV does not
impact our analysis. A remand, therefore, is unnecessary.
22
these determinations has long since passed. Therefore, Condemnees’ attempt to
challenge these determinations now is not only untimely but an impermissible
collateral attack on the PUC’s jurisdiction.
We addressed this very issue in Sunoco I, as well, wherein we explained that
the Eminent Domain Code does not permit a court to review the public need for a
proposed service. 143 A.3d at 1018. We specifically noted that “determinations of
public need for a proposed utility service are made by the PUC, not the courts.” Id.
at 1019 (citing Fairview Water, 502 A.2d 162). We further explained:
While courts of common pleas have jurisdiction to review whether an
entity attempting to exercise eminent domain power meets the BCL
criteria, that jurisdiction does not include the authority to revisit PUC
adjudications. A CPC issued by PUC is prima facie evidence that
PUC has determined that there is a public need for the proposed
service and that the holder is clothed with the eminent domain power.
This Court has stated “[t]he administrative system of this
Commonwealth would be thrown into chaos if we were to hold that
agency decisions, reviewable by law by the Commonwealth Court, are
also susceptible to collateral attack in equity in the numerous common
pleas courts.”
Id. at 1018 (quoting Aitkenhead, 442 A.2d at 367 n.5). This is consistent with
Supreme Court precedent that urges that an “agency’s subsequent determination on
the issue, when final, is binding and not subject to collateral attack upon the
resumption of judicial proceedings.” White v. Conestoga Title Ins. Co., 53 A.3d
720, 728 n.14 (Pa. 2012) (citing Elkin v. Bell Telephone Co. of Pa., 420 A.2d 371,
374 (Pa. 1980)). Simply put, the PUC’s determination that there is a public need
for the proposed pipeline went unchallenged and therefore controls disposition of
this issue.
23
B. Collateral Estoppel
Condemnees next assert that collateral estoppel applies to bar Sunoco’s
Declarations based on the York County decision in Loper. However, as it did in
Sunoco I, Sunoco presented evidence that, after the decision in Loper, an intrastate
component had been added to the Mariner East Project in the form of on-ramps
and off-ramps within Pennsylvania thus providing for PUC regulation. Common
pleas determined that collateral estoppel did not apply because:
many relevant events have occurred since the [Loper decision] that
compel this Court to consider the issues as undecided. The two main
events are: (1) adding on and off ramps within Pennsylvania and (2)
the spike in past winter demands. While the proposed pipeline may
have been solely interstate in Loper, the intrastate component was
subsequently added, which in turn made federal and state agencies
regulate the pipeline. The proposed off ramps are a public benefit
within Pennsylvania. Condemnor’s Ex. 4, p. 8. This Court took
judicial notice that Sunoco is a public utility. We could not ignore the
relevant events that have occurred after the Loper decision, and
collateral estoppel does not bar this Court from deciding this matter.
(Common pleas’ Op. at 4-5.) Common pleas’ conclusion here is consistent with
our holding in Sunoco I that Sunoco’s Declarations were not barred by collateral
estoppel, and thus there is no error.
C. Adequacy of Bond Value/Clean and Green Act
Finally, Condemnees argue that Sunoco failed to provide sufficient collateral
when it filed its Declaration because their property is enrolled under the “Clean
and Green Act,” 72 P.S. §§ 5490.1-5490.13.20 Sunoco argues that this issue was
waived as the Condemnees failed to raise it in their POs or at any time before
20
The Pennsylvania Farmland and Forest Land Assessment Act of 1974, Act of
December 19, 1974, P.L. 973, as amended, 72 P.S. §§ 5490.1-5490.13.
24
common pleas, although they challenged the sufficiency of the bond generally. 21
However, they did not address that issue in their Rule 1925 Statement and common
pleas did not address it in its opinion in support of the January 6, 2016 Order.
Under Section 3 of the Clean and Green Act, the assessed value of property
devoted to certain agricultural uses is reduced. 72 P.S. § 5490.3. Generally, when
property enrolled under the Clean and Green Act is conveyed for non-agricultural
uses, the property loses its reduced assessment and a roll-back tax is imposed to
collect the reduced taxes for the past seven years. Section 6 of the Clean and
Green Act, 72 P.S. § 5490.6. However, Section 6 also exempts condemnation
from the roll-back tax requirement. 72 P.S. § 5490.6(a.1)(1)(ii), (a.1)(2.1).22 The
Clean and Green Act’s implementing regulations at 7 Pa. Code § 137b.85 provide
as follows:
If any portion of a tract of enrolled land is condemned, the
condemnation will not trigger liability for roll-back taxes on either the
condemned portion of the enrolled land or the remainder. If the
condemned portion or the remainder of the enrolled land remains in
agricultural use, agricultural reserve or forest reserve, and meets the
criteria in section 3 of the act (72 P.S. § 5490.3), preferential
assessment shall continue with respect to that condemned portion or
remainder.
7 Pa. Code § 137b.85. Therefore, Sunoco’s condemnation will not trigger liability
for roll-back taxes and, as long as the remainder of the enrolled land continues to
21
We note that common pleas’ January 6, 2016 Order in this action states in Paragraph 5
that “The bond posted by Sunoco Pipeline, L.P. is adequate pursuant to the evidence presented.”
(R.R. at 2l.)
22
Subsection (a.1)(1)(ii) was added by Section 7 of the Act of December 21, 1998, P.L.
1225. Subsection (a.1)(2.1) was added by Section 2 of the Act of October 27, 2010, P.L. 866.
25
meet the criteria, the Condemnees’ property will continue to be preferentially
assessed. The adequacy or sufficiency of a bond amount in an eminent domain
case is a matter within the trial court’s discretion, which will not be disturbed
unless there is a manifest abuse of discretion. In re Phila. Parking Auth., 189 A.2d
746, 752, (Pa. 1963); York City Redev. Auth. of City of York v. Ohio Blenders,
Inc., 956 A.2d 1052, 1061 (Pa. Cmwlth. 2008); In re City of Scranton, 572 A.2d
250, 256 (Pa. Cmwlth. 1990). We find no error or abuse of discretion in common
pleas’ decision.
IV. Conclusion
Condemnees’ appeal as to collateral estoppel, the intrastate nature of
Mariner East 2 Service, the applicability of PUC Orders and CPCs to Mariner East
2, and public need are controlled by Sunoco I and common pleas’ January 6, 2016
Order is in accord therewith. Robinson IV does not alter this conclusion.
Furthermore, Condemnees’ assertions that Sunoco’s Declaration violates PRPA
and the Clean and Green Act are not supported by the law and the record in this
case. We therefore affirm common pleas’ January 6, 2016 Order.
________________________________
RENÉE COHN JUBELIRER, Judge
26
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Condemnation by Sunoco :
Pipeline L.P. of Permanent and :
Temporary Rights of Way for the :
Transportation of Ethane, Propane, :
Liquid Petroleum Gas, and Other :
Petroleum Products in the Township :
of Union, Huntingdon County, :
Pennsylvania, Over the Lands of :
Stephen Gerhart and Ellen S. Gerhart :
:
Appeal of: Stephen Gerhart and : No. 220 C.D. 2016
Ellen S. Gerhart :
ORDER
NOW, May 15, 2017, the January 6, 2016 Order of the Court of Common
Pleas of Huntingdon County, in the above-captioned matter, is AFFIRMED.
________________________________
RENÉE COHN JUBELIRER, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
In Re: Condemnation by Sunoco :
Pipeline L.P. of Permanent and :
Temporary Rights of Way for the :
Transportation of Ethane, Propane, :
Liquid Petroleum Gas, and Other :
Petroleum Products in the Township :
of Union, Huntingdon County, :
Pennsylvania, Over the Lands of :
Stephen Gerhart and Ellen S. Gerhart :
:
Appeal of: Stephen Gerhart and : No. 220 C.D. 2016
Ellen S. Gerhart : Submitted: September 2, 2016
BEFORE: HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE JOSEPH M. COSGROVE, Judge
OPINION NOT REPORTED
DISSENTING OPINION
BY JUDGE COSGROVE FILED: May 15, 2017
The majority suggests that since Sunoco is deemed to be a public
utility, its actions in relation to the taking of one’s property are beyond our review.
In support of this, the majority cites Robinson Township v. Public Utility
Commission, 147 A.3d 536, 587 (Pa. 2016)(Robinson IV): “Importantly, the
Supreme Court recognized that public utilities ‘have long been permitted the right
to exercise powers of eminent domain conferred on them by the Commonwealth in
furtherance of the overall public good.’” See Majority, slip op. 22.
This quote from Robinson IV, however, is taken out of context since
the Supreme Court was neither establishing nor reaffirming a position suggested by
the majority, but was instead merely outlining the essence of our court’s decision
in Robinson Township v. Public Utility Commission, 96 A.3d 1104 (Pa. Cmwlth.
2014) (Robinson III), (which the Supreme Court was overturning) and doing so
with a fair amount of skepticism as to the position we had taken. This is evident in
the sentence preceding that which the majority quotes: “The Commonwealth
Court … strive[s] mightily to read the language of Section 3241(a) as restricting
this taking power to only those corporations which qualify, statutorily, to be public
utilities.” Robinson IV, 147 A.3d at 587. In the present matter this court is again
“striving mightily” to interpret something in a way that strains credulity and, I
suggest, will face the same fate as our decision in Robinson IV.
Our response to Robinson IV in this case was to ask for and receive
supplemental briefing from the parties on how that decision should be addressed.
We should have done more. Recently, in Hughes v. UGI Storage Company, (Pa.
Cmwlth., No. 629 C.D. 2016, filed March 13, 2017), 2017 WL 962449, and
Albrecht v. UGI Storage Company, (Pa. Cmwlth., No. 630 C.D. 2016, filed March
13, 2017), 2017 WL 962449, we remanded for development of a record at the trial
level on the impact of Robinson IV. We should do the same here. Instead, we are
issuing a decision on a case submitted without argument before a three judge panel
(let alone en banc) which implicates one of the most important environmental
decisions our Supreme Court has issued in recent times.
The majority, mooring its reasoning to this misread of Robinson IV,
greatly misses the point. Robinson IV represents a watershed moment in our
environmental jurisprudence. Environmental considerations are not ancillary
nuisances but instead are infused with the constitutional strength the
JMC-2
Environmental Rights Amendment intended. See Pa. Const., art. I, § 27.1 As
such, they are to be treated with a heightened seriousness. As I believe the
majority misses this opportunity, I must dissent.
___________________________
JOSEPH M. COSGROVE, Judge
1
We must be attentive to the fact that this matter involves another fundamental
constitutional right, namely, the freedom from the taking of one's private property. See In Re:
Sunoco Pipeline, L.P., 143 A.3d 1000, 1020 (Pa. Cmwlth. 2016)(Brobson, J., dissenting)("Private
property rights have long been afforded especial protection in this Commonwealth. For that reason,
the law of our Commonwealth requires that courts closely scrutinize the exercise of eminent
domain.")
JMC-3