The Pennsylvania Supreme Court declared unconstitutional a 2012 law (Act 13) that authorizes the taking of real property for the storage of natural gas. The September 28 decision may have major implications for the constitutionality of Sunoco’s use of eminent domain for building its Mariner East Pipeline (spanning PA, WV & OH). The Supreme Court wrote, among other things, that:
“The Commonwealth does not claim, nor can it do so reasonably, that the public is the ‘primary and paramount’ beneficiary when private property is taken in this manner. Instead, it advances the proposition that allowing such takings would somehow advance the development of infrastructure in 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 type of takings.”
In conclusion on this point, the Court wrote:
“Section 3241 of Act 13, which facially permits any private corporation empowered to transport, sell, or store natural gas or manufactured gas in Pennsylvania to seize subsurface lands of a private property owner for the purpose of storing natural gas therein, violates the Fifth Amendment to the United States Constitution and Article I, Section 10 of the Pennsylvania Constitution by permitting a taking of private property for a private purpose.”
The Court also hinted that it may not consider public utilities per se to have the power of eminent domain:
“The Commonwealth Court and Appellees strive mightily to read the language of
Section 3241(a) as restricting this taking power to only those corporations which qualify, statutorily, to be public utilities. Ostensibly they do so to establish that the conferral of this power should then be considered beyond constitutional challenge, because public utilities have long been permitted the right to exercise powers of eminent domain conferred on them by the Commonwealth in furtherance of the overall public good.”
The PA Supreme Court’s decision applies only to Pennsylvania, but the questions raised will no doubt be addressed elsewhere.