Earlier this month, the state Department of Environmental Protection abruptly shut down construction on the Mariner East 2 pipeline, a piece of energy infrastructure that’s meant to carry natural gas byproducts from the Marcellus Shale to a processing facility in Marcus Hook.
The reason, according to DEP’s order, was a series of “egregious and willful” violations of the permits the Department had issued early in 2017, from discharging industrial waste into streams to performing unauthorized “horizontal directional drilling” at certain sites. Taken together, the Department concluded, the violations demonstrated “a lack of ability or intention” on the part of Sunoco, which is building the pipeline, to comply with the law—namely the Clean Streams Law and the Dam Safety and Encroachment Act.
Mariner East may not be the result of a vast conspiracy or individual wrongdoing, but the reality is just as troubling: a regulatory gap that no one is stepping up to fill.
The violations raise big questions about Sunoco’s approach to the project and its potential impact on the environment. But the permits were only suspended until Sunoco complies with an extensive list of orders outlined by the DEP. Both parties say that Sunoco has already begun to do so, which likely means that sooner or later, construction will be up and running again.
But while news stories have focused on the violations and the temporary shutdown, the saga of the Mariner East 2 Pipeline actually raises deeper questions about property rights, public safety, and government accountability. The story of the Mariner East 2 Pipeline is a story that touches on important issues surrounding eminent domain, who gets to decide what’s safe in our communities, and who gets held to account when dangerous policies are adopted. You don’t have to be a dyed-in-the-wool environmentalist or own a property along the course of the pipeline to want these issues addressed.
So here they are, the questions and answers we should all want:
How did we get here?
Development of the Mariner East pipeline got underway in earnest in 2012, after Sunoco announced that it was closing the oil refinery it had operated at Marcus Hook for most of the 20th century amid sagging demand for oil refining in the northeast. Now, instead of shipping refined oil products from east to west, a subsidiary of Sunoco would use an existing pipeline to transport natural gas byproducts from west to east. Those byproducts, called natural gas liquids (NGLs), include ethane, propane, and butane. The Mariner East project was designed to capitalize on the Marcellus Shale natural gas bonanza and preserve the Marcus Hook industrial facility, which had long been seen as critical to the regional economy.
By the time Sunoco began shipping ethane from Marcus Hook in 2016, Sunoco was at work expanding the project. Mariner East began with an existing pipeline, but Mariner East 2, designed to increase capacity for transporting NGLs, would require the construction of an entirely new one. Later, the project expanded again to include two new planned pipelines. They’ll transport NGLs to Marcus Hook, where they’ll be processed, then made available commercially, with most of the materials being sold in European markets.
Though the route mainly follows the path of Mariner East 1, Sunoco needed easements on privately-owned land to build the new pipe. Sunoco has been able to negotiate easements with “the vast majority of the 2,700 properties that line the Mariner East 2 route,” says Jeff Shields, a spokesman for the company. But in some cases, it has sought to take land from uncooperative landowners using eminent domain.
Why does Mariner East 2 have eminent domain power?
Today, Sunoco is able to use eminent domain, the power to condemn private property for public use, because of its status as a public utility. But the path it took to secure that authority was circuitous. The company didn’t seek approval for Mariner East 2 specifically as a public utility. Instead, it has relied on the public utility status of the original pipeline that Sunoco used for Mariner East 1.
Sunoco has argued that that approval, which dates to the 1930s, confers public utility status on Mariner East—even though the project reversed the flow of the original pipeline and is using it to carry an entirely different set of materials. The company has been able to use that same public utility status for Mariner East 2 by arguing that it’s an extension of the original, even though it requires all new construction.
And while a substantial portion of the materials transported through the pipeline will be sold commercially overseas, the Pennsylvania Public Utility Commission has determined that it will also provide “significant public benefits” for Pennsylvanians, including the ability to meet demand for propane with expanded pipeline capacity, bolstering the argument that the project is a public utility.
Those arguments have been successful so far. But the Clean Air Council has sued Sunoco in the Court of Common Pleas, arguing that it doesn’t have the right to exercise eminent domain. The details of that case are somewhat obscure, and hinge on jurisdictional questions about whether Mariner East is an intrastate pipeline or an interstate pipeline. That case is still pending.
“The conclusion that Sunoco can take people’s land to build this, we think, is wrong and contrary to the constitution,” says Alex Bomstein, senior litigation attorney for the Clean Air Council.
By contrast, Bomstein noted that the 97-mile Shell Falcon pipeline in Western Pennsylvania is proceeding without the need for condemnations. Shields says that Sunoco has paid out “nearly $190 million” to landowners for easements along the Mariner East 2 corridor.
What are the risks?
Natural gas liquids are characterized as “highly volatile.” In the event of a leak, the pressurized liquids become gaseous, and are heavier than air. In its emergency guidebook, the federal Pipeline and Hazardous Materials Safety Administration includes fire and explosion, dizziness and asphyxiation as potential hazards, and recommends evacuating downwind by at least half a mile.
The likelihood that the 350-mile pipeline will have a major leak in the direct vicinity of a school may be small, but it’s not impossible. Back in April, Mariner East 1 leaked a relatively small 20 barrels of ethane and propane in Berks County.
It’s those hazards that are worrying to residents of Delaware and Chester counties, along the route of Mariner East 2. Concerns have been particularly pitched in Delaware County, where the pipeline is planned to run within 650 feet of Glenwood Elementary School. From the point of view of Seth Kovnat, a former Middletown Township resident and member of the Middletown Coalition for Community Safety, which formed in response to Mariner East 2, the routing of the pipeline is putting people in harm’s way.
If a half-mile evacuation is the recommendation in the event of a leak, Kovnat says, the pipeline shouldn’t be built within half a mile of dense residences, let alone a school. “The only way to make it safe is if you literally do a mile-wide pipeline corridor,” Kovnat says. “If you want to eminent domain people, eminent domain that entire stretch.”
The likelihood that the 350-mile pipeline will have a major leak in the direct vicinity of a school may be small, but it’s not impossible. Back in April, Mariner East 1 leaked a relatively small 20 barrels of ethane and propane in Berks County. The Middletown Coalition commissioned its own risk assessment, which concluded that some 40 schools in the state could be within the “blast zone” if a leak were to occur nearby.
Sunoco says that it exceeds all federal safety regulations, and that those regulations require that companies perform risk assessments when building pipelines. An assessment commissioned by West Goshen Township in Chester County also concluded that Sunoco is exceeding regulations, though critics said the report was inadequate. Kovnat maintains that Pennsylvanians should be demanding an independent risk assessment for the entire length of the pipeline.
What are the benefits of the pipeline?
Last week, Econsult released a study—commissioned by Sunoco—estimating the total impact of Mariner East construction at $9.1 billion. Construction of the two new pipelines and new facilities at Marcus Hook will support an estimated 9,500 jobs a year over the next six years, according to the report. And Econsult estimates that the Marcus Hook industrial complex will support 200 direct jobs by 2020, generating between $1.4 million and $2.1 million in state taxes annually.
Pipeline critics called the report “dubious,” and even supporters are taking it with a grain of salt.
“If you want to look at [the Econsult report] with a sly eye, that’s fine, but that is a huge potential economic benefit,” says John McBlain, the Republican chairman of the Delaware County Council. McBlain says that finding a reuse for Marcus Hook preserved “a way of life” in the county. He supports the Mariner East project, but says his support is based on the assumption that “there won’t be a public safety problem.”
“I’m not going to run away from my support for the economic development project,” McBlain says. “But if it needs to be slowed down or stopped in order to address all of these concerns in a reasonable manner, I’m for that.”
What agency is accountable for ensuring the pipeline is safe?
One of the most frustrating aspects of the project to Kovnat and other critics is that there doesn’t seem to be one agency that’s charged with monitoring the public safety risks of the pipeline’s routing.
“No state government agency with any power over safety, as far as I’m aware, has done anything to address the concerns of this much explosive potential this close to so many vulnerable people,” says Bomstein.
In an email to The Citizen, the Department of Environmental Protection said that its review only relates to the environmental impacts of construction, not safety. “The Department of Environmental Protection has regulatory authority over the portions of construction relating to earth disturbance and waterway and wetland crossings,” the Department said. “Pipeline safety is under the purview of the PA Utility Commission once the pipeline is installed.”
What this means, essentially, is that the public-safety oversight of Mariner East 2 begins once it is operational—that is, after property has been condemned, and gas started flowing. There’s no agency that’s reviewing the proposed pipeline route from the perspective of public safety.
But calls for an independent risk assessment are growing. Last month, Republican Congressman Patrick Meehan, whose district includes parts of Delaware County, issued a press release urging Governor Tom Wolf to “conduct and publicize a risk assessment that takes into consideration the potential hazards of a pipeline leak.” Democratic and Republican state senators and representatives have called for a risk assessment as well.
The Wolf administration, meanwhile, contends it does not have jurisdiction to conduct a safety assessment either.
“It is important to understand that the Public Utility Commission, and not the Governor’s Office, has statutory authority over and responsibility for the safety of this pipeline project once it is in operation,” says J.J. Abbott, a spokesman for Wolf. “The Governor supports PUC conducting a risk assessment and has said so publicly on multiple occasions.”
But Nils Hagen-Frederiksen, a spokesman for the PUC says the commission doesn’t have jurisdiction over the siting of the pipeline, and was noncommittal about the possibility that PUC would perform a risk assessment. The PUC does review pipeline design plans, contractor qualifications, and emergency response plans to make sure they meet federal regulations.
“The Commission continues to consider how to best address public concerns about pipeline safety, while also remaining focused on a vigorous tempo of inspections and monitoring across Pennsylvania,” Hagen-Frederiksen said, in an email.
“I think the governor owns this pipeline,” says Bomstein. “His administration pushed DEP to make the permitting happen and happen quickly. And at this point it’s his administration that has the power to revoke the permits.”
Already, Mariner East 2 is becoming an influential political issue. In November, residents of two Chester County townships voted for a slate of Democratic candidates who were opposed to the project, as The Inquirer reported. And in Delaware County, two Democrats won seats on the County Council for the first time in history. Though the Delco Democrats capitalized on the Trump backlash, the Mariner East project also played a role.
Brian Zidek, one of the two new Delco Democratic council members, says that the previous, all-Republican council took credit for helping to repurpose the Marcus Hook facility for Mariner East, but then “washed their hands” of responsibility for the project. He said he doesn’t believe the previous council took residents’ concerns to heart. He intends to call for the council to commission a risk assessment “in the next week or two.”
“I hope that my colleagues on the other side of the aisle sitting on council recognize the need to examine how much of a danger Mariner East 2 poses to the citizens of Delaware County,” Zidek said.
So…who do we hold accountable?
Mariner East may not be the result of a vast conspiracy or individual wrongdoing, but the reality is just as troubling: a regulatory gap that no one is stepping up to fill. The agencies that citizens might expect to ensure this pipeline—and any such project—are safe are pointing fingers at each other, but to date not one governmental body has done the work of assessing the risks of the new pipeline’s placement. And none has plans to. Meanwhile, Sunoco is expected to resolve the permit violations and resume construction on the pipeline.
Ultimately, this is why we have elected officials. The wisdom—or not—of putting a potentially risky pipeline within range of a school rests at the feet of Gov. Wolf and local and state representatives.
“I think the governor owns this pipeline,” says Bomstein. “His administration pushed DEP to make the permitting happen and happen quickly. And at this point it’s his administration that has the power to revoke the permits.”