Wednesday, December 21, 2016

Pa. Commonwealth Court grants new argument to landowners battling eminent domain in pipeline case

Elllen Gerhart) with her daughter Elise Gerhart, in front of the family home,
are fighting eminent domain taking by Sunoco for the Mariner East 2 pipeline.
Susan Phillips reports for StateImpact:
Landowners battling pipeline companies over eminent domain takings got an early Christmas gift from the Commonwealth Court in the form of a new legal maneuver this week. An attorney representing a family fighting Sunoco’s Mariner East 2 pipeline in Huntingdon County will be able to use a recent Supreme Court ruling to try to strengthen their case.
In September, the Pennsylvania Supreme Court ruled in the landmark Robinson Township case, which overturned aspects of the state’s new oil and gas law Act 13, that the legislature could not grant eminent domain authority to companies building gas storage facilities. The court’s decision hinged on the fact that the public was not the “primary and paramount” beneficiary, as the state had claimed.
“Instead, it advances the proposition that allowing such takings would somehow advance the development of infrastructure of the Commonwealth. Such a projected benefit is speculative, and, in any event, would be merely an incidental one and not the primary purpose for allowing these takings,” wrote Justice Debra McCloskey Todd for the majority.
Although neither the Supreme Court decision, nor the Robinson Township case, addressed pipelines, many wonder if the same argument could be applied in the hundreds of cases pending before county level courts. In case after case, for those challenging eminent domain takings by Sunoco across the 350-mile route, the courts have ruled against landowners. But this decision appears to open the door a bit for the Gerhart family, and possibly others, through the use of a new argument.
Ellen Gerhart and her daughter Elise have become vocal opponents of Sunoco’s plans. In efforts to prevent tree-clearing this year Elise Gerhart camped out in a tree, and Ellen Gerhart was arrested for trespassing on her own land. The charges were recently dropped. The Gerharts had lost their eminent domain case against Sunoco in Huntingdon County Court of Common Pleas, but appealed to the Commonwealth Court where the case is still pending.
The family’s lawyer Rich Raiders had already filed the appropriate briefs, and the deadline for submitting more arguments to the court had passed before the Supreme Court ruled against eminent domain for gas storage in September. But Raiders asked the court for the opportunity to file new information based on the Supreme Court’s Robinson Township decision, and he found out Monday that his motion was granted. Raiders says he thinks the Supreme Court justices may be interested in looking at the issue of eminent domain and pipelines.
“If the Commonwealth Court is letting me brief this issue, it is a hint that there’s interest above,” Raiders told StateImpact.
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