The Delaware Riverkeeper Network’s lawsuit against Sunoco regarding the Mariner East II Pipeline has been dismissed, and rightfully so. Delaware Riverkeeper Network claimed that Sunoco violated the Clean Water Act when the company did not seek a federal permit, even though the company had already secured a nearly identical state permit. Judge Paul Diamond found their claim to “offend basic principles of fairness” and “do nothing to help protect the environment.” The Mariner East II Pipeline has endured many such frivolous lawsuits and has yet again, come out on top.
In order to fully comprehend why lawsuits like this are grounded in personal sentiment rather than legal principle it is important to understand the details of the case and judgement.
The Delaware Riverkeeper Network filed the lawsuit claiming that Sunoco violated the Clean Water Act by not applying for the National Pollutant Discharge Elimination (NPDES) permit. This permit protects companies from violating the Clean Water Act if they discharge “pollutants” through a “point source” into a body of water in the U.S.
However, under the Clean Water Act, the states themselves set water quality standards using federal criteria, anticipating a partnership between states and the Federal Government. Pennsylvania’s Department of Environmental Protection (DEP) is therefore responsible for water quality regulation. While the Environmental Protection Agency (EPA) can distribute NPDES permits, states also have their own permit programs for discharges into waters. In lamest terms, once the EPA approves a state’s permitting program, the availability of federal NPDES permits is suspended. This Memorandum of Agreement (MOA) exists between the Commonwealth, the EPA, and DEP.
The MOA requires that the DEP (state) provides the EPA (federal) with all draft permits, inspection notes, and all data to be shared so that the EPA can evaluate the permit in regards to the NPDES program. The Mariner East II pipeline had already undergone these inspections and had their materials submitted on a federal level through the Commonwealth’s permit program and was approved.
Sunoco did take the necessary steps to protect against any inadvertent returns by taking the DEP’s advice and applying for E&S permits. An expert witness testified that E&S permits are nearly identical to NPDES permits and that the DEP has never engaged in issuing NPDES permits to pipeline projects.
While the Delaware Riverkeeper Network claims that Sunoco discharged industrial wastes into waters without a NPDES permit, the truth is a permit would not have been required. The DEP had already determined that after Sunoco received their permits from the state, any inadvertent returns are a compliance matter and subject to the DEP’s authority. Sunoco did receive substantial penalties for noncompliance with the E&S permits.
Consequently, Judge Diamond found “imposing liability on Sunoco for failing to secure NPDES permits would offend basic principles of fairness and effect an absurd result.” Judge Diamond agrees that the pipeline has “been subject to the fullest regulation.” This lawsuit was simply an attempt to, yet again, end construction of Mariner East II based on personal grudges held against Sunoco instead of sound legal standard.