Pennsylvania is known for a shoot-first-ask-questions-later approach to energy regulatory policy. Officials warmly welcomed companies that wanted to drill wells into the Marcellus Shale, for instance, even before health and environmental experts had a chance to examine the potential impacts of fracking across the state.
Pennsylvania lawmakers and regulators also created an industry-friendly regulatory environment for pipeline developers. Officials were forced to jettison that approach on Wednesday, however, when they ordered Energy Transfer Partners subsidiary Sunoco Pipeline LP to immediately cease construction of the Mariner East 2 pipeline due to “egregious and willful violations” of safety and environmental laws.
Controversy had plagued the Mariner East 2 project every step of the way, from numerous construction mishaps, spills, and violations to hiring a private security firm to conduct surveillance of landowners opposed to the pipeline crossing their land. Energy Transfer Partners’ other projects, most notably the Dakota Access Pipeline in North Dakota, have drawn similar scrutiny from regulators and pipeline opponents.
In the order, DEP officials emphasized that Sunoco’s “unlawful conduct” demonstrates “a lack of ability or intention” by the company to comply with the Clean Streams Law, the Dam Safety and Encroachments Act, and other conditions in its pipeline construction permit.
From the beginning of the project, local residents along the pipeline route warned that Mariner East 2 would damage their property, cause pollution, and impact private water supplies. “DEP’s decision to suspend the permits required for construction affirms that the concerns raised by these community members were valid, and that the pipeline should never have been approved in the first place,” Sierra Club Pennsylvania Chapter Director Joanne Kilgour said in a statement Wednesday.
The DEP had given Sunoco plenty of opportunities to clean up its act. But suspension of the pipeline permit was necessary because other enforcement procedures, penalties, or remedies “would not be adequate” to get Sunoco to follow the rules, given the company’s history of noncompliance with the law, the department said.
A Sunoco spokesperson said in a statement that the company is confident it will soon be allowed to resume work on the project. The company also expressed its “dedication to preserving and protecting the environment in which we conduct our work.”
“The order requires us to submit various reports related to current and future construction activities. We intend to expeditiously submit these reports,” spokesperson Jeff Shields said.
The pipeline, costing more than $2.5 billion, is designed to carry propane, ethane, and butane some 350 miles from the Marcellus Shale of southwest Pennsylvania to an export terminal at Marcus Hook near Philadelphia. In a controversial decision, the Pennsylvania Public Utility Commission (PUC) in 2014 recognized Sunoco and its Mariner Pipeline as a public utility, with the right to use eminent domain to condemn properties of landowners in Pennsylvania.
During the just-announced halt in the construction process, residents and regulators should remain vigilant because Energy Transfer Partners “has worked in secret on unauthorized portions of the project,” Elise Gerhart, whose family owns property through which the pipeline travels, said in a statement in response to the DEP’s order. Gerhart is co-founder of Camp White Pine, a group started to prevent the completion of the Mariner East 2 pipeline.
For years, the Gerhart family has been fighting the pipeline project. In September, the family filed a lawsuit against Sunoco, plus a private security firm and more than two dozen state and local police officers, for violating constitutional protections when members of the family and their supporters were arrested on the property owned by the Gerhart family in March 2016.
Energy Transfer Partners had hired TigerSwan, a private security firm, to conduct “surveillance, monitoring, social media engagement, and counter-intelligence” on the Mariner East 2 protesters, as it did with the controversial Dakota Access Pipeline in North Dakota in 2016.
Sunoco violated the conditions of its pipeline permit numerous times but was always allowed to proceed with construction — until now. In September, for example, the DEP said Sunoco violated a court-brokered agreement imposing new restrictions on drilling for the pipeline when it spilled drilling mud into at least three waterways. But the DEP did not tell the company to halt construction.
In October, three environmental groups — Clean Air Council, Delaware Riverkeeper Network, and the Mountain Watershed Association — filed a motion for summary judgment with the Pennsylvania Environmental Hearing Board to revoke certain permits for the pipeline on the grounds that the pipeline would violate state law by crossing “exceptional value” wetlands unnecessarily, that Sunoco violated anti-degradation law for those wetlands, and that the DEP issued permits without receiving a storm water management plan from Sunoco.
Also in October, the Pennsylvania PUC halted Sunoco’s plans to build a valve and associated equipment on private land in Chester County on the basis that the construction breached a settlement agreement between West Goshen Township, Pennsylvania, and the company. Work on the rest of the pipeline, however, was allowed to continue.
Within 10 days of the January 3 order, Sunoco must backfill all areas of pipeline trench excavation, unless it can provide sufficient justification for an extension of time. In the same period, the company also must remove drill bit and other equipment from any unpermitted horizontal directional drilling activities unless it gets DEP approval to leave the equipment in place.
Sunoco’s parent company, Energy Transfer Partners, also put in a dismal environmental performance in 2017. The Michigan Department of Environmental Quality issued a violation notice against Energy Transfer Partners in October for dumping petroleum-contaminated water into a wetland during construction of the Rover Pipeline. In November, the state of Ohio filed a lawsuit against Rover Pipeline, operated and majority-owned by Energy Transfer Partners, for allegedly polluting state waterways as it constructed the 713-mile pipeline to transport natural gas from southwest Pennsylvania across Ohio and into Michigan and Ontario, Canada.
Gerhart said the DEP’s order does not hold Energy Transfer Partners accountable for the damage it has already done to private property and the environment during the construction of Mariner East 2. “It does not bring clean water to those who have already lost it. It does not bring justice to those whose rights have been violated, including our environment,” she said. “Now is not the time to sit back and bask in a false sense of relief. It’s a time to push back with everything we have left.”
This article was updated at 8:45 a.m. ET on January 4, 2017, to include a comment from a Sunoco spokesperson on the Pennsylvania DEP’s order.