“The decisions of the United States Supreme Court interpreting federal statutes are binding on this Court.”
How later courts described this case
- “The decisions of the United States Supreme Court interpreting federal statutes are binding on this Court.”
- noting that approved SIPs are federal law and may be enforced in federal court under CAA citizen suit provision
- “The Commonwealth Court was not incorrect in observing that the pronouncements 11 of the lower federal courts have only persuasive, not binding, effect on the courts of this Commonwealth.”
Written by the judges who cited it.
The opinion
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clifford Cole, Pamela West, :
Brian Weirback, Kathy Weirback, :
Todd Shelly and Christine Shelly, :
Petitioners :
:
v. : No. 1577 C.D. 2019
: Argued: September 16, 2020
Pennsylvania Department of :
Environmental Protection, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
OPINION BY JUDGE BROBSON FILED: June 15, 2021
I. INTRODUCTION
In April 2019, Respondent Pennsylvania Department of Environmental
Protection (DEP) approved the plan of Intervenor Adelphia Gateway, LLC
(Adelphia) to construct a natural gas compressor station in West Rockhill Township,
Bucks County, Pennsylvania, which the parties refer to as the Quakertown
Compressor Station. Petitioners Clifford Cole, Pamela West, Brian Weirback,
Kathy Weirback, Todd Shelly, and Christine Shelly filed a timely appeal of DEP’s
1
This case was assigned to the opinion writer before Judge Brobson succeeded Judge
Leavitt as President Judge.
decision with the Pennsylvania Environmental Hearing Board (EHB). The EHB
dismissed the appeal, concluding that it lacked subject matter jurisdiction.
Petitioners now appeal that dismissal.
We have before us a pure question of law that implicates the subject matter
jurisdiction of both the EHB and the United States Court of Appeals for the Third
Circuit.2 The question, simply stated, is whether Section 19(d)(1) of the federal
Natural Gas Act, as amended in 2005, 15 U.S.C. § 717r(d)(1),3 divests the EHB of
its subject matter jurisdiction to hear Petitioners’ appeal from DEP’s approval of the
Quakertown Compressor Station. Section 717r(d)(1), titled “Judicial Review,”
provides, in relevant part:
The United States Court of Appeals for the circuit in which a facility
. . . is proposed to be constructed, expanded, or operated shall have
original and exclusive jurisdiction over any civil action for the review
of an order or action of a Federal agency . . . or State administrative
agency acting pursuant to Federal law to issue, condition, or deny any
permit, license, concurrence, or approval (hereinafter collectively
referred to as “permit”) required under Federal law, other than the
Coastal Zone Management Act of 1972[4] . . . .
(Emphasis added.) Alternatively stated, we must determine whether
Section 717r(d)(1) requires that every challenge to a DEP approval issued pursuant
to federal law be lodged with the Third Circuit. For the reasons set forth below, we
conclude that the EHB erred in dismissing Petitioners’ appeal for lack of subject
matter jurisdiction.
2
The United States Courts of Appeals are the intermediate appellate courts of the federal
judiciary. They are organized into 12 regions, or circuits. Pennsylvania is located within the Third
Circuit.
3
For ease of reference, we will refer to this provision simply as Section 717r(d)(1).
4
16 U.S.C. §§ 1451-1467.
2
II. BACKGROUND
A. The EHB
In Pennsylvania, environmental regulation and enforcement are split between
three bodies—(1) DEP, which implements and enforces the laws; (2) the
Environmental Quality Board, which serves as the administrative rulemaking body;
and (3) the EHB, which serves as the adjudicator of disputed matters. See Tire
Jockey Serv., Inc. v. Dep’t of Env’t Prot., 915 A.2d 1165, 1185 (Pa. 2007). The EHB
is not an appellate body with a limited scope of review. To the contrary, in matters
challenging DEP action, the EHB conducts a de novo review of evidence produced
before the EHB to determine whether DEP’s action can be sustained or supported.
Pa. Trout v. Dep’t of Env’t Prot., 863 A.2d 93, 106 (Pa. Cmwlth. 2004). In
proceedings before the EHB, the burden of proof lies with the party protesting the
DEP action. Id. at 105.
The General Assembly originally established the EHB in 1971 as an
administrative body within DEP (f/k/a the Department of Environmental
Resources).5 The original purpose of the EHB was to hold hearings and issue
adjudications under the Administrative Agency Law (AAL).6 Generally speaking,
the AAL ensures that those whose “personal or property rights, privileges,
immunities, duties, liabilities[,] or obligations” are affected by a state agency action
are afforded notice and an opportunity to be heard before a final agency decision is
rendered. See 2 Pa. C.S. § 101 (definition of adjudication), § 504 (providing that
“[n]o adjudication of a Commonwealth agency shall be valid as to any party unless
5
Act of December 3, 1970, P.L. 834 (repealed by the Act of July 13, 1988, P.L. 530).
6
Pennsylvania’s original Administrative Agency Law, Act of June 4, 1945, P.L. 1388, was
enacted in 1945. The current Administrative Agency Law, 2 Pa. C.S. §§ 101, 501-508, 701-704,
was enacted in 1978 and repealed and replaced the original law.
3
he shall have been afforded reasonable notice of a hearing and an opportunity to be
heard”).
In 1988, the General Assembly enacted the Environmental Hearing Board Act
(EHB Act),7 establishing the EHB as a quasi-judicial agency independent of DEP.
Section 3(a) of the EHB Act, 35 P.S. § 7513(a). The role of the EHB as the
adjudicator for purposes of compliance with the AAL, however, remained
unchanged. Section 4(a) of the EHB Act, 35 P.S. § 7514(a). In addition, the EHB
Act, like its predecessor, provides the following with respect to actions by DEP:
[DEP] may take an action initially without regard to [Chapter 5,
subchapter A of the AAL], but no action of [DEP] adversely affecting
a person shall be final as to that person until the person has had the
opportunity to appeal the action to the [EHB] . . . . If a person has not
perfected an appeal in accordance with the regulations of the [EHB],
[DEP’s] action shall be final as to [that] person.
Section 4(c) of the EHB Act, 35 P.S. § 7514(c) (emphasis added). Adjudications by
the EHB are appealable as of right to this Court. Pa. Const. art. V, § 9 (“[T]here
shall . . . be a right of appeal . . . from an administrative agency . . . to an appellate
court, the selection of such court to be as provided by law.”); 42 Pa. C.S. § 763(a)(1)
(vesting exclusive appellate jurisdiction in Commonwealth Court over appeals from
EHB).
B. Adelphia Plan Approval
The Quakertown Compressor Station is a component of the Adelphia
Gateway Project (Project), which involves the purchase, construction, and operation
of an interstate natural gas transmission infrastructure between Pennsylvania and
Delaware. On January 12, 2018, Adelphia filed an application with the Federal
Energy Regulatory Commission (FERC), requesting a Certificate of Public
7
Act of July 13, 1988, P.L. 530, as amended, 35 P.S. §§ 7511-7516.
4
Convenience and Necessity for the Project under Section 7(c) of the Natural Gas
Act, 15 U.S.C. § 717f(c).8 Adelphia also separately sought plan approval from DEP
for the Quakertown Compressor Station, an air contamination source, under the
Clean Air Act (CAA)9 and Pennsylvania’s Air Pollution Control Act (APCA).10
On April 19, 2019, DEP granted plan approval of the Quakertown Compressor
Station, subject to conditions that would have to be met in order for DEP to issue an
operating permit. (Reproduced Record (R.R.) 15a-72a.) In the letter transmitting
the plan approval, DEP expressly noted that its approval was subject to review by
the EHB:
8
Section 7(c)(1)(A) of the Natural Gas Act, 15 U.S.C. § 717f(c)(1)(A), provides, in
relevant part:
No natural-gas company or person which will be a natural-gas company upon
completion of any proposed construction or extension shall engage in the
transportation or sale of natural gas, subject to the jurisdiction of [FERC], or
undertake the construction or extension of any facilities therefor, or acquire or
operate any such facilities or extensions thereof, unless there is in force with respect
to such natural-gas company a certificate of public convenience and necessity
issued by [FERC] authorizing such acts or operations . . . .
9
42 U.S.C. §§ 7401-7671q.
10
Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. §§ 4001-4015. One of
the purposes of the APCA is to implement the CAA. Sections 2(a) and 4(1) of the APCA, 35 P.S.
§§ 4002(a), 4004(1). As we recognized in Groce v. Department of Environmental Protection,
921 A.2d 567 (Pa. Cmwlth. 2007), appeal denied, 944 A.2d 759 (Pa. 2008), the CAA relies on
states to create state implementation plans (SIP) to implement federal clean air standards. Groce,
921 A.2d at 571 (citing 42 U.S.C. § 7410(a)(1)). The Environmental Protection Agency (EPA)
reviews and approves or disapproves SIPs. 42 U.S.C. § 7410. Pennsylvania’s approved SIP
requires any person who seeks to construct a source of air contamination or to install an air cleaning
device on an air contamination source to first obtain plan approval from DEP. See 25 Pa. Code
§§ 127.11-.52 (Plan Approval Regulations). “Air contamination source” is defined in the APCA
as “[a]ny place, facility or equipment, stationary or mobile, at, from or by reason of which there is
emitted into the outdoor atmosphere any air contaminant.” Section 3 of the APCA, 35 P.S. § 4003.
5
Any person aggrieved by this action may appeal the action to the
[EHB], pursuant to Section 4 of the [EHB] Act, 35 P.S. § 7514, and the
[AAL] . . . .
....
Appeals must be filed with the [EHB] within 30 days of receipt of
notice of this action unless the appropriate statute provides a different
time. This paragraph does not, in and of itself, create any right of appeal
beyond that permitted by applicable statutes and decisional law.
....
IF YOU WANT TO CHALLENGE THIS ACTION, YOUR
APPEAL MUST BE FILED WITH AND RECEIVED BY THE
[EHB] WITHIN 30 DAYS OF RECEIPT OF NOTICE OF THIS
ACTION.
(R.R. at 15a-16a (emphasis in original).)
Petitioners filed a timely appeal of the plan approval with the EHB. Adelphia
filed a motion to dismiss, arguing that the plan approval was a federally delegated
permitting decision associated with a project that falls under the jurisdiction of
FERC and the Natural Gas Act, 15 U.S.C. §§ 717-717z. For that reason, Adelphia
argued that any challenge to the plan approval lies within the original and exclusive
jurisdiction of the Third Circuit under Section 717r(d)(1). The EHB, relying on a
series of Third Circuit decisions applying Section 717r(d)(1), agreed and dismissed
the appeal.
III. DISCUSSION
A. Contentions
Petitioners contend that their appeal to the EHB does not fall within the
exclusive jurisdiction afforded to the Third Circuit under Section 717r(d)(1). That
statute, Petitioners contend, only vests exclusive jurisdiction in the Third Circuit of
civil actions that seek review of DEP actions taken pursuant to federal law to issue
a permit required under federal law. Petitioners argue that none of these criteria are
met in this case. First, they contend that a statutory appeal to the EHB is not a “civil
6
action,” relying on the Third Circuit’s decision in Township of Bordentown, New
Jersey v. Federal Energy Regulatory Commission, 903 F.3d 234 (3d Cir. 2018).
Second, Petitioners contend that the plan approval in this case did not implicate
federal law, namely the CAA. Petitioners argue that the source of air pollution in
this matter—the proposed Quakertown Compressor Station—did not require an EPA
permit under the CAA because it did not qualify as a major source of air pollution.
Accordingly, as Adelphia did not require plan approval under the CAA, DEP’s
action in this matter arose solely under DEP’s authority under state law—the APCA.
Third, and finally, Petitioners argue that there is no federal law that required
Adelphia to secure plan approval in this case.11
In response, DEP contends that DEP’s issuance of the plan approval is, itself,
a “civil action” under Section 717r(d). It then cites three Third Circuit decisions—
Delaware Riverkeeper Network v. Secretary Pennsylvania Department of
Environmental Protection, 833 F.3d 360 (3d Cir. 2016) (Riverkeeper I); Delaware
Riverkeeper Network v. Secretary Pennsylvania Department of Environmental
Protection, 903 F.3d 65 (3d Cir. 2018) (Riverkeeper III); and Delaware Riverkeeper
Network v. Secretary Pennsylvania Department of Environmental Protection, 783 F.
App’x 124 (3d Cir. 2019) (Riverkeeper V)—wherein the Third Circuit determined
that it had jurisdiction over challenges to DEP permitting decisions.12 (DEP’s Br.
at 14.)
The Clean Air Council, Citizens for Pennsylvania’s Future, Fair Shake Environmental
11
Legal Services, and Mountain Watershed Association, as amici curiae, filed a brief in support of
Petitioners’ appeal.
12
The other Riverkeeper decisions cited by the parties are Delaware Riverkeeper Network
v. Secretary of Pennsylvania Department of Environmental Protection, 870 F.3d 171
(3d Cir. 2017) (Riverkeeper II), and Delaware Riverkeeper Network v. Secretary Pennsylvania
Department of Environmental Protection, 751 F. App’x 169 (3d Cir. 2018) (Riverkeeper IV).
7
DEP acknowledges that the Third Circuit has not yet addressed the question
of whether a plan approval issued pursuant to state regulations that are part of a
state’s SIP constitutes state action “pursuant to federal law” for purposes of
Section 717r(d). It contends, however, that other circuits have, directing us to
Dominion Transmission, Inc. v. Summers, 723 F.3d 238 (D.C. Cir. 2013), and
Friends of Buckingham v. State Air Pollution Control Board, 947 F.3d 68 (4th
Cir. 2020). DEP argues that because Pennsylvania’s SIP includes the Plan Approval
Regulations, the Plan Approval Regulations are enforceable as a matter of federal
law. See 40 C.F.R. § 52.2062.13 In addition, DEP contends that the Natural Gas Act
preempts enforcement of Pennsylvania’s Plan Approval Regulations and the APCA
independent of the CAA: “If [DEP] had not issued the [p]lan [a]pproval pursuant to
its authority delegated under the [CAA], this action would have been preempted by
the Natural Gas Act.” (DEP’s Br. at 18.)
13
The federal regulation provides:
(a) Emission limitations and related provisions which are established in
Pennsylvania plan approvals as federally enforceable conditions shall be
enforceable by EPA. EPA reserves the right to deem plan approval conditions not
federally enforceable. Such a determination will be made according to appropriate
procedures, and be based upon the plan approval, the relevant approval procedures,
or plan requirements which do not conform with the plan approval program
requirements or the requirements of EPA’s underlying regulations.
(b) Emission limitations and related provisions which are established in
Pennsylvania general plan approvals as federally enforceable conditions shall be
enforceable by EPA. EPA reserves the right to deem general plan approval
conditions not federally enforceable. Such a determination will be made according
to appropriate procedures, and be based upon the general plan approval, the relevant
approval procedures, or plan requirements which do not conform with the general
plan approval program requirements or the requirements of EPA’s underlying
regulations.
40 C.F.R. § 52.2062.
8
On the major versus minor source distinction, DEP argues that the distinction
is of no consequence because Pennsylvania’s Plan Approval Regulations are part of
Pennsylvania’s SIP. Citing the United States Court of Appeals for the Fourth
Circuit’s decision in Friends of Buckingham, DEP presses its contention that even
plan approvals for minor sources of air pollution are “required [under f]ederal law”
so long as the approval is part of a state’s SIP approved by the EPA for compliance
with the CAA. (DEP’s Br. at 20.)
Adelphia argues that Petitioners’ reliance on Bordentown is misplaced, as that
decision, applying New Jersey law, turned on whether the agency permitting
decision at issue in that case was final. In Bordentown, Adelphia contends, the Third
Circuit held that the permitting decision was not yet final, because an intra-agency
review process was necessary to consummate the state permitting decision. Here,
by contrast, citing Riverkeeper III, Adelphia contends that the Third Circuit has held
that EHB review is not necessary to consummate a DEP permitting decision.
Adelphia argues that Bordentown’s reach extends only to limited scenarios where
the contested administrative hearing process is part of “an agency’s own
intra-agency review.” (Adelphia’s Br. at 14 (emphasis in original).) Pennsylvania’s
scheme, Adelphia argues, is different than New Jersey’s unitary intra-agency review
structure, because DEP and the EHB are entirely different agencies. Again relying
on Riverkeeper III, Adelphia argues that it is significant that the EHB proceeding is
entirely separate from DEP’s permitting decision, is subject to a separate set of rules,
and is overseen by a separate body of state officials. (Id. at 17.) In short, in terms
of whether a DEP permitting decision is final and ripe for review by the Third
Circuit, Adelphia claims that the Third Circuit has definitively ruled in the
affirmative through its Riverkeeper decisions.
9
Like DEP, Adelphia contends that Pennsylvania’s SIP is enforceable as a
matter of federal law. See Bell v. Cheswick Generating Station, 734 F.3d 188,
190-91 (3d Cir. 2013) (noting that approved SIPs are federal law and may be
enforced in federal court under CAA citizen suit provision). It also contends that
Pennsylvania’s Plan Approval Regulations adopt the Federal Standards of
Performance for New Stationary Sources (40 C.F.R. Part 60), which apply to all plan
approvals, regardless of whether the source of pollution is major or minor.
(Adelphia’s Br. at 21.) Adelphia also joins in DEP’s argument that, if the plan
approval in this case was not issued pursuant to the CAA, it is preempted by the
Natural Gas Act. Adelphia, like DEP, also notes that FERC, in its environmental
assessment of the Project, conditioned its issuance of a certificate of public
convenience on Adelphia securing plan approval for the Quakertown Compressor
Station. Accordingly, the plan approval is required by federal law.
In reply, Petitioners argue that DEP misconstrues the federal statute by
arguing that the plan approval, rather than Petitioners’ EHB appeal, is a “civil action”
triggering the Third Circuit’s exclusive jurisdiction. Petitioners contend that the
Third Circuit did not directly address the question of whether an administrative
appeal constitutes a “civil action” in the Riverkeeper decisions. With respect to
Riverkeeper II, specifically, Petitioners note that the Third Circuit’s decision
addressed the ripeness of Third Circuit review, not the question of EHB jurisdiction.
(Petitioners’ Reply Br. at 10.) They also note that Riverkeeper IV and Riverkeeper V
are unreported decisions and do not have precedential value.14 Nonetheless,
Petitioners distinguish the permitting decision in this matter from the issuance of
water quality certificates in the Riverkeeper decisions, as the issuance of the permits
14
See Third Circuit Internal Operating Procedures 5.1, 5.3, and 5.7.
10
in those cases was clearly mandated by federal law. (Petitioners’ Reply Br. at 6
(citing 33 U.S.C. § 1341(a)(1)).) Petitioners stand by their argument that
Bordentown controls and press their position that any federal requirement that
Adelphia must comply with Pennsylvania laws does not transform Pennsylvania’s
laws into federal laws.
B. Analysis
In the absence of Section 717r(d)(1), there would be no question about the
EHB’s jurisdiction to hear Petitioners’ challenge to DEP’s plan approval for the
Quakertown Compressor Station. As explained above, the EHB’s jurisdiction over
Petitioners’ challenge is clearly supported by the EHB Act. DEP and Adelphia
contend that Section 717r(d)(1) strips the EHB of its jurisdiction and requires that
any challenge—indeed, all challenges—to DEP’s plan approval must be lodged in
the Third Circuit. For the reasons that follow, we disagree.
We note first that while decisions of the United States Supreme Court
interpreting federal statutes are binding on this Court, the same is not true of
decisions by the lower federal courts. See Krentz v. Consol. Rail Corp., 910 A.2d 20,
33 n.15 (Pa. 2006) (“The decisions of the United States Supreme Court interpreting
federal statutes are binding on this Court.”); Hall v. Pa. Bd. of Prob. & Parole,
851 A.2d 859, 865 (Pa.), cert. denied, 543 U.S. 927 (2004). This does not mean we
are compelled to ignore on-point Third Circuit decisions or, for that matter, decisions
of any federal court of appeals, interpreting a federal statute. To the contrary, such
decisions in factually similar cases with persuasive legal analysis may inform our
disposition of the matter before us. In re Stevenson, 40 A.3d 1212, 1221 (Pa. 2012)
(“The Commonwealth Court was not incorrect in observing that the pronouncements
11
of the lower federal courts have only persuasive, not binding, effect on the courts of
this Commonwealth.”).
Turning to the federal statute in question, we conclude that the meaning of the
statute is unambiguous on its face. Section 717r(d)(1) confers unto the federal circuit
courts of appeals original and exclusive jurisdiction over “any civil action” for
review of certain state agency permitting or approving determinations that relate to
projects that fall within the scope of the Natural Gas Act. We need not address the
parties’ arguments as to whether DEP’s plan approval in this case is the type of
agency action that triggers Section 717r(d)(1), because this matter can be resolved
solely on the question of whether the EHB proceeding below was a “civil action”
that should have been brought in the Third Circuit.15
The Natural Gas Act does not define the term “civil action.” When a statutory
term is undefined, federal statutory construction principles require us to give the
term its ordinary meaning. See Taniguchi v. Kan Pac. Saipan, Ltd., 566 U.S. 560,
566 (2012).16 In Bordentown, the Third Circuit, applying this principle, held that the
15
After oral argument in this matter before the Court en banc, Adelphia filed an
Application for Relief to File a Post-Submission Letter pursuant to Rule 2501(a) of the
Pennsylvania Rules of Appellate Procedure. In that application, and the accompanying letter,
Adelphia essentially provides a post-argument sur-reply brief on certain issues and questions that
arose during oral argument. The Court did not request supplemental briefing on the issues and
questions that Adelphia raises in its sur-reply brief. Moreover, Adelphia “does not allege any
modification or reversal of authority relied on by either party that would necessitate the filing of
such a communication.” Commonwealth v. Abdul-Salaam, 812 A.2d 497, 504 n.3 (Pa. 2002).
Accordingly, we will deny Adelphia’s application to file a post-submission communication.
16
In determining the meaning and application of federal law, we follow the following
guidance from the Pennsylvania Supreme Court:
The construction of a federal statute is a matter of federal law. Under federal rules
of statutory construction, in determining the meaning of a federal statute, the courts
look not only to particular statutory language, but also to the design of the statute
as a whole and to its purposes. Furthermore, when the courts confront
12
term “civil action” in Section 717r(d)(1) “refers only to civil cases brought in courts
of law or equity and does not refer to hearings or other quasi-judicial proceedings
before administrative agencies.” Bordentown, 903 F.3d at 267. The Third Circuit
continued: “The [United States] Supreme Court has long recognized that
administrative hearings, even to the extent that they in some ways mirror an
adversarial trial, do not constitute proceedings in courts of law or equity.” Id.
Pennsylvania law is in accord with this plain-meaning interpretation. In
East v. Workers’ Compensation Appeal Board (USX Corporation/Clairton),
828 A.2d 1016 (Pa. 2003), the Pennsylvania Supreme Court reversed a decision by
this Court that had interpreted “civil action” in what is commonly referred to as
Pennsylvania’s Minority Tolling Statute17 to include claims for benefits under the
Workers’ Compensation Act.18 In so doing, the Supreme Court held that
administrative actions, such as workers’ compensation proceedings, are “distinct
from civil actions.” East, 828 A.2d at 1020. The Supreme Court expressly noted
how the term “civil action,” though undefined, appears in “more than five hundred
separate legislative provisions.” Id. at 1021. The Court continued:
circumstances not plainly covered by the terms of a statute, suggesting that
Congress did not contemplate the issue, they endeavor to give statutory language
the meaning that advances the policies underlying the legislation.
Council 13, Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO v. Cmwlth., 986 A.2d 63, 80
(Pa. 2009) (citations omitted). In addition, the United States Supreme Court has noted that the
starting point for any statutory interpretation is the text of the statute itself: “And where . . . the
words of the statute are unambiguous, the ‘judicial inquiry is complete.’” Desert Palace, Inc. v.
Costa, 539 U.S. 90, 98 (2003) (quoting Conn. Nat’l Bank v. Germain, 503 U.S. 249, 254 (1992)).
17
42 Pa. C.S. § 5533(b). The Minority Tolling Statute, inter alia, tolls applicable statutes
of limitations for certain “civil action[s]” until the minor with the cause of action reaches the age
of 18 years.
18
Act of June 2, 1915, P.L. 736, as amended, 77 P.S. §§ 1-1041.4, 2501-2710.
13
While the parties have provided no assistance in the task, our
examination of each of these has revealed persuasive evidence that the
Legislature uses the term in a way that does not encompass proceedings
before the workers’ compensation authorities. Most revealing in this
regard are those provisions in which “civil actions” are expressly
distinguished from “administrative proceedings”, thereby
demonstrating that the former excludes the latter. The majority of these
statutory exemplars express the understanding that “civil actions” are
those commenced and conducted in a court of record, involving
traditional common law claims for damages or equitable relief
governed by the Pennsylvania Rules of Civil Procedure.
Id. at 1021-22 (footnotes omitted).
Proceedings before the EHB, an administrative agency independent of DEP,
are administrative proceedings, not civil actions. The EHB is not a court of law or
of equity. It is a creature of statute, charged with performing the agency adjudicative
function with respect to certain DEP actions in compliance with the AAL. Thus,
applying Bordentown and consistent with Pennsylvania Supreme Court
jurisprudence, we hold that Petitioners’ appeal of the DEP plan approval to the EHB
is not a “civil action” and, therefore, does not fall within the exclusive jurisdiction
of the Third Circuit under Section 717r(d)(1). Rather, Petitioners’ appeal to the EHB
is an administrative proceeding, distinct from a civil action, and it lies properly
before the EHB under Pennsylvania law.
The Riverkeeper decisions address related, but distinct, questions in terms of
the application of Section 717r(d)(1). Riverkeeper I involved consolidated appeals
from decisions by the New Jersey Department of Environmental Protection (NJDEP)
and DEP that granted water quality permits for a FERC-regulated natural gas
pipeline expansion project. Various environmental organizations and individuals
challenged the permitting decisions by invoking the Third Circuit’s exclusive
jurisdiction under Section 717r(d)(1). Both DEP and NJDEP contested the Third
Circuit’s exercise of jurisdiction under the statute, arguing that they did not act
14
“pursuant to [f]ederal law” when they issued the permits at issue. Riverkeeper I,
833 F.3d at 370. The Third Circuit disagreed, concluding that the state permitting
decision arose under the CAA and the federal Clean Water Act (CWA).19 Under
Section 717r(d)(1), the Third Circuit concluded, “a state action taken pursuant to the
[CWA] or [CAA] is subject to review exclusively in the Courts of Appeals.” Id.
at 372. The Third Circuit noted that the purpose underlying Section 717r(d)(1) “is
to streamline the review of state decisions taken under federally[]delegated
authority.” Id. “To bar this Court’s review of [DEP’s] actions in permitting an
interstate natural gas facility pursuant to the Natural Gas Act and the [CWA],” the
Third Circuit opined, “would frustrate the purpose of Congress’s grant of
jurisdiction.” Id.
We do not disagree with any of the Third Circuit’s conclusions in
Riverkeeper I. The decision simply is not on point. In that case, a challenge to state
permitting decisions was lodged not with the EHB, but with the Third Circuit. That
challenge was, based on the definition above, unquestionably a “civil action.” The
jurisdictional issue in Riverkeeper I turned on whether the challenged permitting
decisions were the type of state action that fell within the Third Circuit’s exclusive
statutory jurisdiction. The Third Circuit ruled that they were and, therefore, rejected
the state agencies’ jurisdictional challenge. While we recognize the Third Circuit’s
point that the underlying purpose of Section 717r(d)(1) may have been to “streamline
the review of state decisions,” this goal does not command that we abandon our
plain-meaning construction of the term “civil action” in the federal statute above and
its application in this matter. Congress’s purpose to “streamline” judicial review is
evident, by use of the term “civil action” and by directing all judicial review of
19
33 U.S.C. §§ 1251-1388.
15
certain state permitting decisions to the circuit courts of appeals. There is no
evidence, in the text or otherwise, of Congress’s intent to interrupt or bypass a state’s
administrative review process, if invoked.20
In Riverkeeper II, an environmental organization and one of its members
petitioned the Third Circuit for review of a DEP permitting decision for an interstate
natural gas pipeline project, invoking the Third Circuit’s exclusive statutory
jurisdiction under the Natural Gas Act. Somewhat inconsistently, the petitioners
also challenged the Third Circuit’s jurisdiction to hear their appeal, contending that
DEP’s permit decision was not final because it had not been reviewed by the EHB.
The petitioners asked the Third Circuit to transfer their challenge to the EHB for an
adjudication. Riverkeeper II, 870 F.3d at 175. Responding to the jurisdictional
challenge—i.e., ripeness for purposes of judicial review—the Third Circuit declined
to rule on the question of whether Section 717r(d)(1) “includes an unstated finality
requirement.” Id. at 176. “In either case,” the court noted, “our jurisdiction is proper
because the agency action here is administratively final.” Id. (emphasis in original).
In support of their ripeness argument, the petitioners in Riverkeeper II relied
on Section 4(c) of the EHB Act, quoted above, for the proposition that the DEP
permitting decision was not final as to them until EHB review. The Third Circuit
rejected that argument, without deciding the question of whether the state statute
controlled when a civil action would be ripe under Section 717r(d)(1). Id. at 177. It
did so because the petitioners never filed a timely appeal of the DEP permit decision
with the EHB. Under Section 4(c) of the EHB Act, then, the DEP permitting
decision was final. Id. The Third Circuit also noted that in terms of DEP, the
20
But see 25 Pa. Code § 1021.96a (rules of EHB providing for motion for expedited
hearing).
16
permitting decision was a final agency action—“[t]here is nothing left for the agency
to do.” Id. at 178. Accordingly, the Third Circuit held that its “jurisdiction [was]
proper regardless of whether the Natural Gas Act limits [its] review to final orders.”
Id.
Like Riverkeeper I, the Third Circuit’s decision in Riverkeeper II is
informative but not on point. Riverkeeper II addressed questions of finality and
ripeness under Section 717r(d)(1). The Third Circuit considered the question of
whether the DEP order before the court for review was final, and the court concluded
that it was. The Third Circuit thus rejected the petitioners’ ripeness argument and
proceeded to review the merits of the permitting decision under its exclusive
jurisdiction in the Natural Gas Act. Nothing in Riverkeeper II addresses directly the
question of whether Section 717r(d)(1) precludes the EHB from reviewing a timely
appeal of a DEP approval or, conversely, whether a timely appeal to the EHB
precludes judicial review of a DEP approval under Section 717r(d)(1). See id.
(“Whether the Natural Gas Act requires finality and how such a requirement would
interact with Pennsylvania’s administrative scheme are issues better resolved in
[other] cases.”).
In Riverkeeper III, the Third Circuit addressed directly the question, left
unanswered in Riverkeeper II, of whether its jurisdiction under Section 717r(d)(1)
was limited to final agency actions “and how such a requirement would interact with
Pennsylvania’s administrative scheme.” Riverkeeper III, 903 F.3d at 68. It held that
while the reference in the jurisdictional statute to state “action” does not expressly
limit judicial review to only the state agency’s ultimate decision, there is a strong
presumption that judicial review is only available when an agency action is final.
17
Id. at 70-71. For that reason, the Third Circuit held that its jurisdiction under
Section 717r(d)(1) extends only to final state agency actions. Id. at 71.
Unlike the petitioners in Riverkeeper II, most of the petitioners in
Riverkeeper III filed timely parallel protective appeals of the DEP permitting
decision with the EHB. Accordingly, the Third Circuit next decided the question of
whether further state administrative agency review of the DEP decision rendered the
DEP decision “non-final” for purposes of federal judicial review under the Natural
Gas Act. Id. at 71-72. It resolved that question by reference to the federal standard
of finality, as set forth in Riverkeeper II: “Final agency action ‘must mark the
consummation of the agency’s decision-making process,’ ‘must not be of a merely
tentative or interlocutory nature,’ and ‘must be one by which rights or obligations
have been determined, or from which legal consequences will flow.’”
Riverkeeper II, 870 F.3d at 176 (quoting Bennett v. Spear, 520 U.S. 154, 177-78
(1997) (some internal quotation marks omitted)); Riverkeeper III, 903 F.3d at 72.
Applying the federal standard, the Third Circuit made several observations.
It noted that once DEP makes a permitting decision, that decision is the final decision
of DEP on the matter. Riverkeeper III, 903 F.3d at 72. Aggrieved parties may appeal
that final agency action to the EHB, and final decisions of the EHB may be appealed
to this Court. Id. Nonetheless, the Third Circuit took special note of Section 4(d)(1)
of the EHB Act, 35 P.S. § 7514(d)(1), which provides that appeals to the EHB “shall
[not] act as an automatic supersedeas.” Id. (quoting 35 P.S. § 7514(d)(1)). The
Third Circuit also noted that the EHB is an administrative agency independent of
DEP, which reviews DEP’s decisions de novo. Id.
Returning to the federal definition of finality, the Third Circuit concluded that
DEP’s permitting decision was the final action of DEP on the matter and was
18
immediately effective regardless of the filing of an appeal with the EHB. In doing
so, the Third Circuit distinguished the DEP permitting decision, which is “a final
order that could be overturned in the event of an appeal,” from “a provisional order
that could become final in the absence of an appeal.” Id. at 73. As a final order of
DEP that could be overturned on appeal, the Third Circuit opined that DEP’s
permitting decision “is no less final for the availability of EHB review than a federal
agency’s is for the availability of review in this Court.” Id.
On the question of finality, the Third Circuit also found it probative that
Pennsylvania law provides for the review of DEP’s permitting decision by a
“structurally[]separate body”—the EHB. Id. at 74. Finality in this context, the Third
Circuit concluded, is concerned with whether DEP, as the agency making the initial
permitting decision, has arrived at its definitive position. Here, DEP “has said its
piece regardless of whether Pennsylvania law gives a different agency the last
word.” Id. “[F]inality,” the Third Circuit opined, “is ‘conceptually distinct’ from
the related issue of exhaustion of administrative remedies.” Id. (quoting Williamson
Cnty. Reg’l Plan. Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 192-93
(1985), overruled on other grounds by Knick v. Twp. of Scott, 139 S. Ct. 2162
(2019)). The Third Circuit noted that the petitioners did not argue that the Third
Circuit lacked jurisdiction due to a failure to exhaust appeals to the EHB. Id.
The Third Circuit also expressly rejected the petitioners’ reliance on
Section 4(c) of the EHB Act, which provides that DEP actions do not become final
as to an adversely affected person until that person has the opportunity to appeal the
action to the EHB. In so doing, the court opined:
Despite this language, Pennsylvania cannot declare when and how an
agency action taken pursuant to federal law is sufficiently final to be
reviewed in federal court. State law’s use of the word “final” to
characterize an agency’s decision is irrelevant in that context, except so
19
far as that language is relevant to the substantive effect of the order in
question and the practical character of the procedures surrounding it.
Here, those underlying realities indicate that [DEP] has taken final
action.
Id. Concluding its analysis of the jurisdictional question, the Third Circuit held:
Notwithstanding the availability of an appeal to the EHB, [DEP]’s
issuance of a Water Quality Certification was final in precisely the most
important ways . . . . [DEP’s] action presents all the “traditional
hallmarks of final agency action,” and we have exclusive jurisdiction
to hear any “civil action for the review” of such a decision.
Id. at 74-75 (quoting Riverkeeper II, 870 F.3d at 178) (emphasis added).
Riverkeeper III was a substantial step in the Third Circuit’s creeping
Section 717r(d)(1) jurisdiction jurisprudence. We respect its two principal holdings
for what they are. First, judicial review under Section 717r(d)(1) is limited to final
state agency actions that fall within the scope of the provision. Second, for purposes
of federal law, a DEP permitting decision that falls within the scope of the provision
is as final for review by the Third Circuit as it is final for review by the EHB. Absent
from the Third Circuit’s decision in Riverkeeper III, however, is any ruling, let alone
a discussion, of whether Section 717r(d)(1) prohibits, or preempts, EHB review
under the EHB Act. Riverkeeper IV and Riverkeeper V offer nothing more, as they
simply reference and incorporate the decision in Riverkeeper III to reject ripeness
challenges to the court’s jurisdiction. Riverkeeper IV, 751 F. App’x at 172-73;
Riverkeeper V, 783 F. App’x at 125 and n.3.
Bordentown, filed only one day after Riverkeeper III, addresses the
preemption question, to an extent. Bordentown involved an interstate natural gas
pipeline upgrade project that required FERC and NJDEP approval. FERC issued a
certificate of public convenience and necessity for the project to Transcontinental
Pipe Line Company, LLC (Transco), conditioned on Transco’s securing all other
authorization required under federal law. Bordentown, 903 F.3d at 245. Because
20
the project impacted wetlands, involved the discharge of fill or dredge into navigable
waters, and involved the diversion of a significant volume of water, Transco applied
to NJDEP for a “Freshwater Wetlands Individual Permit and Water Quality
Certificate,” or FWW Permit, as well as a “dewatering permit.” Id. Following
public hearings, public comments, and consideration of Transco’s responses to the
public comments, NJDEP issued the two permits.
Thereafter, the petitioners in Bordentown requested an adjudicatory hearing
on each permit, in accordance with New Jersey law.21 NJDEP, however, denied the
request. In so doing, NJDEP determined that under Riverkeeper I, the Natural Gas
Act preempted the state administrative hearing process with respect to permits for
interstate natural gas projects. Id. at 245-46. Instead, NJDEP interpreted the Natural
Gas Act as requiring all final permits be challenged exclusively in the Third Circuit.
Id. at 246. In their appeal to the Third Circuit, the petitioners challenged, inter alia,
NJDEP’s decision to decline the requests for adjudicatory hearings.
On this question, the Third Circuit concluded that “NJDEP misunderstood the
scope of the [Natural Gas Act’s] assignment of jurisdiction to the federal Courts of
Appeals.” Id. at 266. The Third Circuit, focusing on the text of Section 717r(d)(1),
noted that the statute vests jurisdiction in the federal court of appeals over “civil
actions.” It then considered the meaning of the term, which was undefined in the
21
New Jersey Administrative Code Section 7:7A-21.1(b), N.J. Admin. Code
§ 7:7A-21.1(b) (1921), relating to the FWW Permit process, provides:
To contest a [NJDEP] decision on an application under this chapter, a person
shall submit an adjudicatory hearing request within 30 calendar days after public
notice of the decision is published in the [NJ]DEP Bulletin. If a person submits the
adjudicatory hearing request after this time, the [NJDEP] shall deny the request.
New Jersey Administrative Code Section 7:14A-17.2, N.J. Admin. Code § 7:14A-17.2 (2021),
also provides for a right to an adjudicatory hearing following a permit decision relating to the
discharge of pollutants to surface or groundwater.
21
statute. “Our review,” the Third Circuit held, “assures us that a ‘civil action’ refers
only to civil cases brought in courts of law or equity and does not refer to hearings
or other quasi-judicial proceedings before administrative agencies.” Id. at 267. The
Natural Gas Act, the Third Circuit reasoned,
only removes from the states the right for their courts to hear civil
actions seeking review of interstate pipeline-related state agency orders
made pursuant thereto[.] [T]he [Natural Gas Act] leaves untouched the
state’s internal administrative review process, which may continue to
operate as it would in the ordinary course under state law.
Id. at 268 (emphasis added).
To further bolster its conclusion, the Third Circuit noted the structure of
Section 717r(d)(1), contrasting the language that Congress used to provide direct
court of appeals review of FERC decisions with that used to provide for review of
state agency decisions:
That [Section] 717r(d)(1)’s scope is limited to judicial review of
agency action, and does not implicate or preempt state agency review
of the agency’s own decision, is also apparent from the statute’s
structure. For example, [Section] 717r(b)—which is titled “Review”
and discusses appeals to the Courts of Appeals from a FERC order—
allows a party “aggrieved by an order issued by the Commission” to
“obtain a review of such order” in the Courts of Appeals. In contrast,
[Section] 717r(d)(1)—which is titled “Judicial review”—grants
“original and exclusive jurisdiction over any civil action for the review
of an order or action of a . . . or State administrative agency.”
[(Emphasis added.)] Congress therefore clearly understood the
difference between establishing direct judicial “review” over agency
action (supplanting any alternative intra-agency process) and creating
an exclusive judicial forum in the federal Courts of Appeals for a “civil
action” challenging an agency’s decision-making (separate from the
agency’s own internal review process). As opposed to affirmatively
installing federal courts to oversee the administrative process, as it did
in [Section] 717r(b) by placing the “review” of all FERC action in the
Courts of Appeals, Congress did not interject federal courts into the
internal workings of state administrative agencies.
Id.
22
The Third Circuit’s decision in this regard was not contingent on a particular
state administrative scheme. Indeed, the court expressly noted that such schemes
may vary widely from state to state. Id. (citing Berkshire Env’t Action Team, Inc. v.
Tenn. Gas Pipeline Co., LLC, 851 F.3d 105 (1st Cir. 2017)). The court held, instead,
that Section 717r(d)(1) addresses this diversity by focusing only on collateral civil
actions that seek to challenge the correctness of a permitting decision, vesting
jurisdiction over such actions exclusively in the federal courts of appeals, “not the
state courts or federal district courts.” Id.
Turning to its recent decision in Riverkeeper III, the Third Circuit in
Bordentown characterized Riverkeeper III as holding that the permits at issue in that
case were final for purposes of judicial review by the Third Circuit under
Section 717r(d)(1) notwithstanding the availability of further administrative review
by EHB. Id. at 269 (quoting Riverkeeper III, 903 F.3d at 74). In other words, the
Third Circuit most certainly did not conclude that the civil action jurisdictional
provision of Section 717r(d)(1) preempted EHB review of DEP’s decision. Instead,
relying on both its decision in Riverkeeper III and the decision of the United States
Court of Appeals for the First Circuit in Berkshire, the Third Circuit rejected a
construction of Section 717r(d)(1) that would have “remove[d] from the states any
and all review over the issuance” of permits that fall under the scope of the statute.
Id. Riverkeeper III and Berkshire, the Third Circuit held, “proceeded based on the
understanding—express or implicit—that state administrative review was available
if desired.” Id. (emphasis added). The court concluded: “The only plausible
conclusion to draw from these cases and from the text of the statute itself is that
[Section] 717r(d)(1) does not preempt state administrative review of interstate
pipeline permitting decisions.” Id.
23
There is a strong presumption against federal preemption of state laws.
See Dooner v. DiDonato, 971 A.2d 1187, 1194 (Pa. 2009). Congress may either
preempt state law expressly, by the words of a statute, or preemption may be inferred
where the federal scheme “occup[ies] the entire legislative field,” leaving “no room
for supplementary state regulation.” Id. at 1193. We find the Third Circuit’s
construction of Section 717r(d)(1) and its effect on Pennsylvania’s state
administrative scheme with respect to DEP permitting decisions in Bordentown and
Riverkeeper III persuasive. Section 717r(d)(1), by its express terms, precludes state
court review—i.e., this Court’s review—of permitting decisions by DEP that fall
under the scope of the provision.22 It does not preempt the Commonwealth’s
administrative review process, which vests within the EHB the authority to conduct
administrative reviews of DEP permitting decisions. That review remains available,
if desired.
Here, Petitioners could have pursued a direct civil action challenge of DEP’s
plan approval by filing a petition with the Third Circuit, invoking that court’s
exclusive jurisdiction under Section 717r(d)(1). Riverkeeper III. Instead,
Petitioners chose to pursue their state administrative remedy under the AAL and the
EHB Act, by filing an administrative appeal with the EHB. We agree with the Third
Circuit that, notwithstanding the ability to directly challenge the plan approval in the
Third Circuit, EHB review was available if desired. Bordentown, 903 F.3d at 269;
22
After oral argument in this matter, we requested supplemental briefing from the parties
solely on the question of whether Section 717r(d)(1) requires this Court to dismiss this appeal for
lack of subject matter jurisdiction in deference to the Third Circuit’s exclusive jurisdiction. In
their supplemental briefs, the parties agree that because the limited question on appeal before this
Court—namely, the subject matter jurisdiction of the EHB—does not involve a review of the
merits of the DEP plan approval, the Third Circuit’s exclusive jurisdiction under
Section 717r(d)(1) is not implicated. Accepting the parties’ position, we will not dismiss this
appeal sua sponte for lack of jurisdiction.
24
Riverkeeper III, 903 F.3d at 74. Petitioners desired it. They invoked it timely. The
EHB erred in dismissing their administrative appeal for lack of jurisdiction.
IV. CONCLUSION
Section 717r(d)(1) vests within the federal circuit courts of appeals exclusive
jurisdiction over civil actions challenging certain state permitting decisions that fall
within the scope of the statute. The term “civil actions” in the federal statute does
not include state administrative agency reviews of state permitting decisions. Such
collateral administrative reviews remain available, if desired, and are not preempted
by the federal jurisdictional statute. For these reasons, expounded upon above, the
EHB erred when it dismissed Petitioners’ timely administrative appeal of the
April 19, 2019 DEP plan approval of the Quakertown Compressor Station for lack
of jurisdiction. We, therefore, will reverse the EHB’s order and remand the matter
to the EHB to hear Petitioners’ administrative appeal.
P. KEVIN BROBSON, Judge
25
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clifford Cole, Pamela West, :
Brian Weirback, Kathy Weirback, :
Todd Shelly and Christine Shelly, :
Petitioners :
:
v. : No. 1577 C.D. 2019
:
Pennsylvania Department of :
Environmental Protection, :
Respondent :
ORDER
AND NOW, this 15th day of June, 2021, the October 9, 2019 Order of the
Pennsylvania Environmental Hearing Board (EHB) (EHB Docket No. 2019-046-L)
is REVERSED. This matter is REMANDED to the EHB for further proceedings
consistent with the accompanying opinion.
Intervenor Adelphia Gateway, LLC’s Application for Relief to File a
Post-Submission Letter is DENIED.
Jurisdiction relinquished.
P. KEVIN BROBSON, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clifford Cole, Pamela West, Brian :
Weirback, Kathy Weirback, Todd :
Shelly and Christine Shelly, :
Petitioners :
: No. 1577 C.D. 2019
v. : Argued: September 16, 2020
:
Pennsylvania Department of :
Environmental Protection, :
Respondent :
BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE J. ANDREW CROMPTON, Judge
CONCURRING OPINION
BY JUDGE CROMPTON FILED: June 15, 2021
While I do not fundamentally disagree with the majority in reversing
the decision of the Environmental Hearing Board (EHB) and remanding this matter
to the EHB, I am of the opinion that the issue now before this Court, namely the
grant or denial of an environmental permit related to a natural gas pipeline, rests on
appeal with the United States Court of Appeals for the Third Circuit, per the Natural
Gas Act,1 pending further clarification by the Third Circuit.2
1
15 U.S.C. §717r(d)(1).
2
This Court relies on the Third Circuit’s decision in Township of Bordentown, New Jersey
v. Federal Energy Regulatory Commission, 903 F.3d 234 (3d Cir. 2018), in determining that a
The issue presently before this Court will not be resolved in its entirety
at the conclusion of the instant matter. I anticipate future litigation regarding the
proper jurisdiction for appeals of permitting decisions by the Department of
Environmental Protection (DEP) involving natural gas pipeline projects. Further, as
the EHB has expressed its belief that appeals of this type are under the exclusive
jurisdiction of the Third Circuit, the EHB and this Court will most likely also
encounter similarly situated jurisdictional disputes in the future, unless or until the
Third Circuit opines on the jurisdiction, or lack thereof, of the EHB.
The Third Circuit has created a body of case law surrounding this topic
that begs further discussion. Without certainty as to the appropriate jurisdiction for
pipeline-related permitting appeals, parties will be forced to engage in guesswork as
to the proper litigation pathway. By potentially engaging in the re-litigation of the
statutory appeal to the EHB is not a “civil action” under Section 717r(d)(1) of the Natural Gas Act.
However, several other decisions by the Third Circuit—Delaware Riverkeeper Network v.
Secretary Pennsylvania Department of Environmental Protection, 833 F.3d 360 (3d Cir. 2016)
(Riverkeeper I); Delaware Riverkeeper Network v. Secretary of Pennsylvania Department of
Environmental Protection, 870 F.3d 171 (3d Cir. 2017) (Riverkeeper II); Delaware Riverkeeper
Network v. Secretary Pennsylvania Department of Environmental Protection, 903 F.3d 65 (3d Cir.
2018) (Riverkeeper III); Delaware Riverkeeper Network v. Secretary Pennsylvania Department of
Environmental Protection, 751 F. App’x 169 (3d Cir. 2018) (Riverkeeper IV); and Delaware
Riverkeeper Network v. Secretary Pennsylvania Department of Environmental Protection, 783 F.
App’x 124 (3d Cir. 2019) (Riverkeeper V)—collectively the Riverkeeper decisions, have addressed
similar issues, often with differing results, to the Third Circuit’s conclusion in Bordentown.
Interestingly, while the Bordentown opinion was filed on September 5, 2018, just one day
prior, on September 4, 2018, the Third Circuit filed an opinion in Riverkeeper III, determining that
the Third Circuit had jurisdiction over challenges to DEP permitting decisions. The Third Circuit
subsequently stated again that it had jurisdiction over challenges to DEP permitting decisions in
Riverkeeper V. Therefore, this Court has been tasked with interpreting contradictory case law in
the absence of further explanation by the Third Circuit.
JAC - 2
issue instantly before this Court, parties will experience delays in receiving
substantive decision making from either the EHB or the Third Circuit.
______________________________
J. ANDREW CROMPTON, Judge
JAC - 3