On May 15, 2017, the Commonwealth Court issued a 2 to 1 decision holding that Sunoco Pipeline has the statutory power of eminent domain in relation to the Mariner East 2 pipeline project. The court determined that Sunoco provides a public benefit and that its pipeline is a necessary accommodation within the public's interest. Further, because the pipeline will provide both an intrastate and interstate service, the Pennsylvania Public Utility Commission has regulatory jurisdiction over that portion of the pipeline to be used for intrastate commerce. The court also held that the Pennsylvania Supreme Court's striking down of a portion of Act 13 (Pennsylvania's beleaguered Oil and Gas Act) that permitted a corporation to take private property as unconstitutional was limited to "private, non-regulated corporations." Therefore, because Sunoco is a "public utility," it is entitled to the granting of certificates of public convenience.
Judge Cosgrove disagreed and warned that the court's decision was headed for a reversal before the Supreme Court: "[W]e 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 Commonwealth Court's decision is captioned In Re: Condemnation by Sunoco Pipeline, L.P. (No. 220 C.D. 2016).