Amicus Brief Recap: Energy Security, Litigation Tourism

The PA Chamber recently filed amicus briefs in a pair of state and federal court cases whose outcomes could significantly impact the state’s business community. The first case deals with the Line 5 pipeline, a critical piece of regional energy infrastructure; while the second case deals with Pennsylvania’s “consent by registration” provision, which imposes legal liability on out-of-state corporations operating in the Commonwealth.

PA Chamber Joins U.S., Canadian, and state chambers in filing Line 5 amicus brief

In another united showing of support for the integral Line 5 pipeline, operated by Enbridge, and plans to build the Great Lakes Tunnel, the PA Chamber of Business and Industry joined with the U.S. Chamber of Commerce, the Canadian Chamber of Commerce, the Michigan Chamber of Commerce, the Ohio Chamber of Commerce and the Wisconsin Manufacturers & Commerce in filing a joint amicus brief in federal court. The brief is in response to Michigan Gov. Gretchen Whitmer’s stance on trying to shut down the key pipeline.

Line 5 delivers 540,000 barrels per day of oil and natural gas liquids to heat homes and fuel vehicles in parts of the Great Lakes region, including southwestern PA. Line 5 also supplies the refineries that produce aviation fuel to Pittsburgh International Airport. The shutdown would result in energy shortages and even higher prices for home heating fuels like natural gas and propane. It would also lead to the loss of tens of thousands of jobs and jeopardize billions of dollars in economic activity.

The coalition filed a previous brief in this case in 2022, arguing that federal courts should exercise jurisdiction and review Michigan’s shutdown order for the Line 5 pipeline.  The district court agreed, citing the gamesmanship from the State of Michigan by attempting to avoid a federal forum. Michigan appealed that decision to the Sixth Circuit.

PA Chamber joins amicus brief to end litigation tourism

Pennsylvania has an obscure statutory provision that treats registration to do business by an out-of-state corporation as consent to jurisdiction in Pennsylvania’s state courts.

Mallory v. Norfolk Southern involves a former employee of Norfolk Southern who filed a lawsuit in Philadelphia arguing that exposure to carcinogens while working at the rail company caused him to develop cancer. The employee is a resident of Virginia and only worked in Ohio and Virgina.  By a narrow 5-4 vote, the U.S. Supreme Court found that Pennsylvania’s consent by registration scheme did not violate the Due Process Clause of the Fourteenth Amendment.

However, in a concurring opinion, Justice Alito strongly suggested that the statute violates the dormant Commerce Clause.  Since that question was not before the court, Alito ultimately cast the deciding vote that it did not violate the Due Process Clause.

The U.S. Chamber Institute for Legal Reform recently published a paper explaining the Mallory decision and the danger that consent by registration poses.  You can read that paper here.

Syngenta Crop Protection is now asking the state Superior Court to review the consent by registration statute for violating the dormant Commerce Clause in a similar case, Syngenta v. Nemeth.  The PA Chamber joined the Pennsylvania Coalition for Civil Justice Reform, the American Property Casualty Insurance Association, and the Insurance Federation of Pennsylvania in filing an amicus brief in support of Syngenta’s petition.


Founded in 1916, the Pennsylvania Chamber of Business and Industry is the state's largest broad-based business association, with its membership comprising businesses of all sizes and across all industry sectors. The PA Chamber is The Statewide Voice of BusinessTM.