Mariner East 2 Pipeline Faces Legal Hurdles

The Mariner East 2 Pipeline (“Pipeline”) is a natural gas liquid pipeline being constructed in Pennsylvania.[1]  The pipeline, which is expected to span three states and 350 miles, will transport natural gas liquids from Ohio and Western Pennsylvania to a refinery in Marcus Hook, Pennsylvania, where it will be distributed domestically and abroad.[2]  Sunoco Logistics, who owns the pipeline, estimates that once completed, the pipeline will “sustain 300-400 permanent jobs and contribute at least $100 million annually to the Pennsylvania economy.”[3]  Controversy still surrounds the construction of the pipeline.[4]

In early 2018, the Pennsylvania Department of Environmental Protection (“DEP”) issued a fine of $12.6 million to Sunoco, one of its largest fines ever, and suspended the company’s permit to construct over its mishandling of the construction of the pipeline.[5]  DEP levied the fine because drilling fluids were spilling into the state’s waterways, conduct that the DEP found “willful and egregious”.[6] Sunoco resumed construction in February 2018 after explaining how it would remedy the fluid spills.[7]

Now, over a year after construction resumed, Sunoco faces yet another legal battle, this time, from Chester County, a county adjacent to Marcus Hook.[8]  The county’s interest rests on the fact that part of the drilling is to be done on county owned land.[9]  The county seeks a permanent injunction against the construction of the pipeline due to Sunoco’s use of an open trench construction method.[10]  Chester County contends that the open trench method of construction will put the safety and welfare of its citizens at risk.[11]  Additionally, the county asserts that by planning on using the open trench method, Sunoco is violating an agreement between the parties that stated Sunoco would only use a bore drilling method of construction on certain lands belonging to the county.[12]  The county believes that the bore method is a safer alternative to open trench, and Sunoco could potentially cause adverse impacts to the county and its citizens.  The Chester County Common Pleas Court, a seemingly favorable venue for the county, will adjudicate the case, however, the issue could become moot if Sunoco finds alternative lands to construct the rest of the pipeline.[13]

[1] Sunoco Pipeline – Mariner East, Chesco Planning (last visited Apr.14, 2019), http://www.chescoplanning.org/pic/ProjectsMariner.cfm.

[2] Id.

[3] Mariner East Projects, Chesco Planning (last visited Apr. 14, 2019), http://www.chescoplanning.org/pic/pdf/meFactsheet011717.pdf.

[4] See John Hurdle, Mariner East 2: Sunoco’s incidents, fines and shutdowns fuel residents’ safety concerns, State Impact Pennsylvania (Sept. 25, 2018), https://stateimpact.npr.org/pennsylvania/2018/09/25/mariner-east-2s-incidents-fines-and-shutdowns-fuel-residents-safety-concerns/.

[5] Marie Cusick, Sunoco to resume work, pay $12.6 million for Mariner East 2 pipeline violations, State Impact Pennsylvania (Feb. 8, 2018), https://stateimpact.npr.org/pennsylvania/2018/02/08/sunoco-to-resume-work-pay-12-6-million-for-mariner-east-2-pipeline-violations/.

[6] Id.

[7] Id.

[8] Michael P. Rellahan, Chesco files lawsuit to halt Sunoco pipeline construction, Daily Local News (Apr. 11, 2019), https://www.dailylocal.com/news/chesco-files-lawsuit-to-halt-sunoco-pipeline-construction/article_3aab555c-5b9f-11e9-9520-a31e877ab36c.html.

[9] Id.

[10] Id.

[11] Michael P. Rellahan, Chesco files lawsuit to halt Sunoco pipeline construction, Daily Local News (Apr. 11, 2019), https://www.dailylocal.com/news/chesco-files-lawsuit-to-halt-sunoco-pipeline-construction/article_3aab555c-5b9f-11e9-9520-a31e877ab36c.html.

[12] Id.

[13] Id.

-Rohan Mohanty

“Waters of the United States”

The Trump Administration is attempting to revise the 2015 definition of “waters of the United States” under the Clean Water Act (“CWA”).[i] The 2015 definition was published by the Environmental Protection Agency (“EPA”) and the U.S. Army Corps of Engineers (“Corps”).[ii] The 2015 definition defines the scope of waters that fall under the jurisdiction of the CWA.[iii] This rule is in effect in twenty-two states, the District of Columbia, and the U.S. territories.[iv]

According to 40 CFR 230.3(s), the term “waters of the United States” means:

  1. All waters which are currently used, or were used in the past, or may be susceptible to use in interstate or foreign commerce, including all waters which are subject to the ebb and flow of the tide;
  2. All interstate waters including interstate wetlands;
  3. All other waters such as intrastate lakes, rivers, streams (including intermittent streams), mudflats, sandflats, wetlands, sloughs, prairie potholes, wet meadows, playa lakes, or natural ponds, the use, degradation or destruction of which could affect interstate or foreign commerce including any such waters:
  4. Which are or could be used by interstate or foreign travelers for recreational or other purposes; or
  5. (From which fish or shellfish are or could be taken and sold in interstate or foreign commerce; or
  6. Which are used or could be used for industrial purposes by industries in interstate commerce;
  7. All impoundments of waters otherwise defined as waters of the United States under this definition;
  8. Tributaries of waters identified in paragraphs (s)(1) through (4) of this section;
  9. The territorial sea;
  10. Wetlands adjacent to waters (other than waters that are themselves wetlands) identified in paragraphs (s)(1) through (6) of this section; waste treatment systems, including treatment ponds or lagoons designed to meet the requirements of CWA (other than cooling ponds as defined in 40 CFR 423.11(m) which also meet the criteria of this definition) are not waters of the United States.[v]

 

The Supreme Court, in the 2007 and 2006 cases, Rapanos v. United States and Carabell v. United States, interpreted the CWA’s jurisdiction over the waters of the United States.[vi] Although Rapanos was a plurality decision, the Court interpreted “waters of the United States” as a term containing water bodies beyond those that are traditionally considered navigable.[vii] It extends to “relatively permanent, standing or continuously flowing bodies of water” and “wetlands with a continuous surface connection to” such relatively permanent waters.[viii]

President Trump issued an executive order on February 28, 2017 directing EPA and Corps to review and rescind the 2015 rule.[ix] On December 11, 2018, the Administration gave a  proposed definition to clarify the federal authority under the CWA.[x] The proposed rule is open to 60-day public comment, which closes on April 15, 2019.[xi] The proposal limits the federal authority over local land use decisions, giving more power to states, who have their own state regulations for bodies of water.[xii] Additionally, no ephemeral features are considered jurisdictional under the proposal, fewer ditches will be jurisdictional, and fewer lakes and ponds will be found as adjacent waters.[xiii]

[i] EPA and Army Propose New “Waters of the United States” Definition, United States Environmental Protection Agency, (Dec. 11, 2018), https://www.epa.gov/newsreleases/epa-and-army-propose-new-waters-united-states-definition

[ii] Waters of the United States (WOTUS) Rulemaking, United States Environmental Protection Agencyhttps://www.epa.gov/wotus-rule/about-waters-united-states

[iii] Id.

[iv] Id.

[v] Clean Water Rule: Definition of “Waters of the United States, Federal Register, https://www.federalregister.gov/documents/2015/06/29/2015-13435/clean-water-rule-definition-of-waters-of-the-united-states

[vi] Clean Water Act Jurisdiction Following the U.S. Supreme Court’s Decision in Rapanos v. United States & Carabell v. United States, United States Environmental Protection Agency,  https://www.epa.gov/sites/production/files/2016-02/documents/cwa_jurisdiction_following_rapanos120208.pdf

United States Environmental Protection Agency, supra note i, at 2-3.

[vii] Id. at 4-5.

[viii] Id. at 12.

[ix] Revised Definition of “Waters of the United States”, Federal Register, Vol. 84 No. 31, https://www.epa.gov/sites/production/files/2019-02/documents/revised_definition_of_waters_of_the_united_states.pdf

[x] Id.

[xi] Id. at 4154.

[xii] Id. at 4155 – 56.

[xiii] Proposed Revised Definition of “Waters of the United States” Key Proposed Changes, United States Environmental Protection Agency, https://www.epa.gov/sites/production/files/2018-12/documents/factsheet_-_key_changes_12.10.18.pdf

-Katy Luchansky

 

 

ELJ Volume 30, Issue 2

We are excited to announce the Case Notes that will be published in our upcoming Volume 30, Issue 2. Please join us in congratulating these ELJ members on a job well done. We look forward to bringing you the finished publications this Spring 2019!

Christina Rossetti: “Merriam-Webster’s Unexpected Impact on the Environment: An Analysis of Justice Kavanaugh’s Mexichem Flour, Inc. v. EPA
Christopher Regan: “Violations Abound: The Control of Water Pollution Liability in EQT Production Company v. Department of Environmental Protection of the Commonwealth
Allison White: “Bridge over Troubled Waters? Ninth Circuit Makes Waves Refusing to Narrow Clean Water Act in Hawaii Wildlife Fund v. County of Maui
Alex Palmer: “A Prophecy Misread Could have Been? Regulatory Adjudications and a Weakening of the Environmental Rights Amendment in Logan v. Department of Environmental Protection

Volume 30, Issue 1

Congratulations to the following authors who have been selected for publication in the Villanova Environmental Law Journal, Volume 30, Issue 1:

“Lowering the Bar?: Reevaluating the Diligent Prosecution Bar in Light of the Gold King Mine Spill” – Connor Adamson 

“The Wild West Re-Lived: Oil Pipelines Threaten Native American Tribal Lands” – Ashley Glick 

“How to Decide Whose Bank Pays: The Impact of Supreme Court Takings Jurisprudence on Environmental Regulations” – Kathleen McCanless

“A Presidential Power of Monumental Proportions: Does the Antiquities Act Permit the Review and Revision of National Monuments or Did President Trump Steal Your Land?” – Maureen McCotter 

“Ocean Acidification: Dealing with Uncharted Waters” – Kimberly Smith 

2018 Villanova Environmental Law Journal Blank Rome LLP Symposium

2018 Villanova Environmental Law Journal Blank Rome LLP Symposium – Standing at the Intersection of Robinson Township and Trump: Current Issues in Real Estate Development and Environmental Law

Attorneys working at the intersection of real estate development and environmental law encounter a host of distinctive issues. Cutting-edge projects are developing renewable energy sources on environmentally contaminated properties. Project developers are working to figure out what it means to mitigate potential environmental concerns in the regulatory environment under the Trump Administration. The Pennsylvania Supreme Court’s 2013 decision in Robinson Township v. Commonwealth continues to reverberate, with uncertain environmental obligations imposed on development projects. The 2018 Villanova Environmental Law Journal Blank Rome LLP Symposium will bring together experienced panelists to discuss and evaluate current issues such as these which attorneys, developers, and regulators are encountering.

The Symposium takes place on Friday, February 9, 2018, from 9:00 a.m. to 12:30 p.m., in the Room 102 of Villanova University Charles Widger School of Law (299 North Spring Mill Road, Villanova). This program is approved by the Pennsylvania Continuing Legal Education Board for 3 substantive CLE credits.

For more information or to register, please visit: https://www.eventbrite.com/e/2018-villanova-environmental-law-journal-blank-rome-llp-symposium-standing-at-the-intersection-of-tickets-42088544971?aff=es2

Volume XXIX, Issue 2

Congratulations to the following staff writers who have been selected for publication in the Villanova Environmental Law Journal, Volume 29, Issue 2:

Trust the Process? The Supreme Court of Pennsylvania’s Broad Interpretation of the Environmental Rights Amendment Sent Shockwaves through the Commonwealth in Pennsylvania Environmental Defense Foundation v. Commonwealth – Rebecca Cabrera

Friends of Lackawanna v. Commonwealth of Pennsylvania, Department of Environmental Protection and Keystone Sanitary Landfill, Inc.: Friends Keep Standing for a Clearer Lackawanna – Zoey Lee

Mining for Answers: The Supreme Court of California Addresses the State’s Ability to Exercise its Police Powers on Federal Land in People v. Rinehart – Rohan Mohanty

Alaska Oil & Gas Association v. Pritzker: ESA Listing Upheld After Foreseeing a Warm Future for Bearded Seals – Shawna Riley

Why? Because, Science: How the Ninth Circuit’s Standard of Review in Helping Hand Tools v. EPA Keeps Exemptions for Biomass-Burning on Track – Joshua Schmid

No Harm, No Foul: How the Ninth Circuit’s Decision in Ground Zero Center for Non-Violent Action v. United States Department of the Navy Essentially Weakens the EIS as an Enforcement Mechanism of NEPA – Kathryn Siegeltuch