Petition for Writ of Certiorari — Delaware Riverkeeper Network, et al., Petitioners v. Secretary, Pennsylvania Department of Environmental Protection, et al.

NO.

In the Supreme Court of the United States

DELAWARE RIVERKEEPER NETWORK; DELAWARE

RIVERKEEPER, MAYA VAN ROSSUM, AND

LANCASTER AGAINST PIPELINES,

Petitioners,

v.

SECRETARY PENNSYLVANIA DEPARTMENT OF

ENVIRONMENTAL PROTECTION; PENNSYLVANIA

DEPARTMENT OF ENVIRONMENTAL PROTECTION;

AND TRANSCONTINENTAL GAS PIPE LINE

COMPANY, LLC,

Respondents.

On Petition for Writ of Certiorari to the

United States Court of Appeals for the Third Circuit

PETITION FOR WRIT OF CERTIORARI

AARON STEMPLEWICZ

Counsel of Record

DELAWARE RIVERKEEPER NETWORK

925 Canal Street

Suite 3701

Bristol, PA 19007

(215) 369-1188

Aaron@delawareriver

keeper.org

Counsel for Petitioners

Delaware Riverkeeper

Network and

The Delaware Riverkeeper

MARK L. FREED

CURTIN & HEEFNER

2005 South Easton Road

Suite 100

Doylestown, PA 18901

(267) 898-0570

Counsel for Petitioner

Lancaster Against

Pipelines

Becker Gallagher · Cincinnati, OH · Washington, D.C. · 800.890.5001

i

QUESTIONS PRESENTED

Section 401 of the Clean Water Act requires an

applicant for an interstate natural gas pipeline project

to obtain “a certification from the State in which the

discharge . . . will originate . . . that any such discharge

will comply with” that State’s water-quality standards.

33 U.S.C. § 1341(a)(1). The Clean Water Act leaves the

states with primary responsibility to regulate such

discharges based on the state’s individual water quality

standards. Each state has its own unique state defined

administrative process for the issuance and review of

any such water quality certifications. The Third Circuit

ruled that despite the fact that Pennsylvania’s

administrative review process was not complete, and

therefore not “final” pursuant to state law, Section

717r(d)(1) of the Natural Gas Act required an appeal of

a water quality certificate to be heard directly by the

Third Circuit Court of Appeals. In doing so, the Third

Circuit discarded Pennsylvania’s statutory definition of

finality, and instead inserted its own federal standard

of finality.

1. May a federal court preempt a state’s

administrative review process by substituting a federal

finality standard for a state finality standard, where

the state finality standard is clearly defined by state

law?

2. Whether the federal court’s preemption of the

Pennsylvania Environmental Hearing Board’s state

administrative review process violates the Tenth

Amendment?

ii

LIST OF PARTIES

Petitioners are the Delaware Riverkeeper Network

and the Delaware Riverkeeper, Maya van Rossum, and

Lancaster Against Pipelines. Respondents are the

Secretary of the Pennsylvania Department of

Environmental Protection and the Pennsylvania

Department of Environmental Protection. IntervenorRespondent is Transcontinental Gas Pipe Line

Company LLC.

CORPORATE DISCLOSURE

This Petition is not filed on behalf of a corporation.

iii

TABLE OF CONTENTS

QUESTIONS PRESENTED . . . . . . . . . . . . . . . . . . . i

LIST OF PARTIES . . . . . . . . . . . . . . . . . . . . . . . . . . ii

CORPORATE DISCLOSURE . . . . . . . . . . . . . . . . . . ii

TABLE OF AUTHORITIES . . . . . . . . . . . . . . . . . . vi

PETITION FOR A WRIT OF CERTIORARI . . . . . . 1

OPINIONS BELOW . . . . . . . . . . . . . . . . . . . . . . . . . 3

JURISDICTION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED . . . . . . . . . . . . . . . . . . . . 3

STATEMENT OF THE CASE . . . . . . . . . . . . . . . . . 4

A. Statutory Background . . . . . . . . . . . . . . . . 4

B. Appeals Process . . . . . . . . . . . . . . . . . . . . . 5

1. Under The Natural Gas Act . . . . . . . . 5

2. Under State Law . . . . . . . . . . . . . . . . . 6

C. Procedural History . . . . . . . . . . . . . . . . . . 6

REASONS FOR ALLOWANCE OF THE WRIT . . . 8

I.

UNDER RULE 10(a) THIS COURT SHOULD

RESOLVE THE CIRCUIT SPLIT OVER

WHETHER STATE ADMINISTRATIVE LAW

PRO CED URES ARE PRESERVED

PURSUANT TO APPEALS TAKEN UNDER

SECTION 717r(d)(1) OF THE NATURAL

GAS ACT . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

iv

A. The Third Circuit’s Opinion In DRN

Irreconcilably Conflicts With The First

Circuit’s Opinion In Berkshire And The

Second Circuit’s Opinion In Murphy . . . . 8

1. The Third Circuit’s Finding Of

Finality In DRN Conflicts With The

First Circuit’s Holding In Berkshire . . 9

i. The Determination Of The Finality

Of A State Issued Permit Must

Respect State Law . . . . . . . . . . . . . 9

ii. The Substantive Functions Of The

Administrative Review Process

in DRN and Berkshire Are The

Same . . . . . . . . . . . . . . . . . . . . . . . 14

2. The Third Circuit’s Finding Of Finality

In DRN Conflicts With The Second

Circuit’s Holding In Murphy . . . . . . . 16

B. The Third Circuit’s DRN Decision Has

Resulted In An Intra-Circuit Split That

Preserved The Administrative Review

Process In New Jersey But Preempted

The Same Process In Pennsylvania . . . . 21

C. The Third Circuit’s Decision In DRN

Condemns The Third Circuit To

Reviewing Incomplete And Inadequate

Records In Section 717r(d)(1) Appeals

And Strips Aggrieved Parties Of Their

Due Process Rights . . . . . . . . . . . . . . . . . 27

v

III.

THE QUESTIONS PRESENTED ARE

EXCEPTIONALLY IMPORTANT AND

HAVE WIDE-RANGING IMPACT . . . . . . . 34

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . 35

APPENDIX

Appendix A Opinion in the United States Court of

Appeals for the Third Circuit

(September 4, 2018) . . . . . . . . . . . App. 1

Appendix B Opinion and Order on the Termination

of the Above-Captioned Appeal in the

Commonwealth of Pennsylvania

Environmental Hearing Board

(June 2, 2017) . . . . . . . . . . . . . . . App. 27

Appendix C Opinion and Order on Request to

Dismiss in the Commonwealth of

Pennsylvania Environmental Hearing

Board

(May 10, 2017) . . . . . . . . . . . . . . App. 38

Appendix D Pennsylvania Bulletin, Vol. 46, No. 17,

Water Quality Certification under

Section, 401 of the Federal Clean

Water Act for the Atlantic Sunrise

Pipeline Project

(April 23, 2016) . . . . . . . . . . . . . App. 48

Appendix E Order Denying Petition for Rehearing

by the Panel Court En Banc in the

United States Court of Appeals for the

Third Circuit

(October 11, 2018) . . . . . . . . . . . App. 55

vi

TABLE OF AUTHORITIES

CASES

Alabama Rivers Alliance v. F.E.R.C.,

325 F.3d 290 (D.C. Cir. 2003) . . . . . . . . . . . 32, 33

Alcoa Power Generating Inc. v. FERC,

643 F.3d 963 (D.C. Cir. 2011) . . . . . . . . . . . . . . 20

Bell v. New Jersey,

461 U.S. 773 (1983) . . . . . . . . . . . . . . . . . . . . . . 10

Berkshire Environmental Action Team, Inc. v.

Tennessee Gas Pipeline, LLC,

851 F.3d 105 (1st Cir. 2017) . . . . . . . . . . . passim

Bradley and Amy Simon v. DEP,

EHB Docket No. 2017-019-L, 2017 WL 2399755

(May 25, 2017) . . . . . . . . . . . . . . . . . . . . . . . . . . 12

Camp v. Pitts,

411 U.S. 138 (1973) . . . . . . . . . . . . . . . . . . . . . . 30

Center for Coalfield Justice and Sierra Club v. DEP,

EHB Docket No. 2016-155-B, 2017 WL 663900

(February 1, 2017) . . . . . . . . . . . . . . . . . . . . 12, 13

Clifton Power v. FERC,

294 F.3d 108 (D.C. Cir. 2002) . . . . . . . . . . . . . . 20

Commonwealth v. Derry Township,

314 A.2d 868 (Pa. Cmwlth. 1973), modified,

351 A.2d 606 (Pa. 1976) . . . . . . . . . . . . . . . . . . . 27

Consol Pa. Coal Co. v. Dept. of Env’tl Prot.,

2011 WL 4943794 (Pa. Env. Hrg. Bd.,

Aug. 26, 2011) . . . . . . . . . . . . . . . . . . . . . . . . . . 31

vii

Darby v. Cisneros,

509 U.S. 137 (1993) . . . . . . . . . . . . . . . . . . . . . . 13

Devia v. NRC,

492 F.3d 421 (D.C. Cir. 2007) . . . . . . . . . . . . . . 20

Domiano v. Commonwealth, Department of

Environmental Resources,

713 A.2d 713 (Pa. Cmwlth. 1998) . . . . . . . . . . . 27

Energy Transfer Partners, LP v. FERC,

567 F.3d 134 (5th Cir. 2009) . . . . . . . . . . . . . . . 20

Fiore v. Department of Environmental Protection,

655 A.2d 1081 (Pa. Cmwlth. 1995)

modified, 351 A.2d 606 (Pa. 1976) . . . . . . . . . . 27

Global Tower Assets, LLC v. Town of Rome,

810 F.3d 77 (1st Cir. 2016) . . . . . . . . . . . . . . . . 13

Harman Coal Co. v. Com., Dept. of Environmental

Resources, 384 A.2d 289 (Pa. Cmwlth. 1978) . . 19

Hoehne v. County of San Benito,

870 F.2d 529 (9th Cir. 1989) . . . . . . . . . . . . . . . 18

Kiak v. Crown Equip. Corp.,

989 A.2d 385 (Pa. Super. Ct. 2010) . . . . . . . . . . 19

Kurtz v. Verizon New York, Inc.,

758 F.3d 506 (2d Cir. 2014) . . . . . . . . . . . . . . . . 17

Leatherwood, Inc. v. Com., Dept. of

Environmental Protection,

819 A.2d 604 (Pa. Cmwlth. 2003) . . . . . . . . 14, 28

Morcoal Company v. Dep’t of Envit. Resources,

459 A.2d 1303 (Pa. Cmwlth. 1983) . . . . . . . . . . 28

viii

Murphy v. Nat’l Collegiate Athletic Ass’n,

138 S. Ct. 1461 (2018) . . . . . . . . . . . . . . . . . . . . 33

Murphy v. New Milford Zoning Comm’n,

402 F.3d 342 (2d Cir. 2005) . . . . . . . . . . . . passim

New York v. United States,

505 U.S. 144 (1992) . . . . . . . . . . . . . . . . . . . . . . 34

Papago Tribal Utility Auth. v. FERC,

628 F.2d 235 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 20

Rhode Island v. EPA,

378 F.3d 19 (1st Cir. 2004) . . . . . . . . . . . . . . . . 10

S. Ohio Coal Co. v. Office of Surface Mining,

Reclamation & Enf’t, Dep’t of Interior,

20 F.3d 1418 (6th Cir. 1994) . . . . . . . . . . . . . . . 11

Spence v. Zimmerman,

873 F.2d 256 (11th Cir. 1989) . . . . . . . . . . . . . . 18

State of Tex. v. U.S. Dept. of Energy,

764 F.2d 278 (5th Cir. 1985) . . . . . . . . . . . . . . . 19

Taylor Inv., Ltd. v. Upper Darby Tp.,

983 F.2d 1285 (3d Cir. 1993) . . . . . . . . . . . . . . . 18

Tire Jockey Serv., Inc. v. Dep’t of Envtl. Prot.,

915 A.2d 1165 (2007) . . . . . . . . . . . . . . . . . . . . . 15

Township of Bordentown, New Jersey v. Federal

Energy Regulatory Commission,

903 F.3d 234 (3d Cir. 2018) . . . . . 8, 21, 22, 23, 26

Transcontinental Gas Pipe Line Co, LLC,

158 F.E.R.C. ¶ 61125 (2017) . . . . . . . . . . . . . . . . 4

ix

United States v. Cooper,

482 F.3d 658 (4th Cir. 2007) . . . . . . . . . . . . . . . 11

Weaver’s Cove Energy, LLC v. State of Rhode

Island Dept. of Env’tl Management,

524 F.3d 1330 (D.C. Cir. 2008) . . . . . . . . . . . . . 32

Williamson Cly. Reg’l Planning Comm’n v.

Hamilton Bank of Johnson City,

473 U.S. 172 (1985) . . . . . . . . . . . . . . . . . . . 18, 19

CONSTITUTIONS AND STATUTES

U.S. Const. amend. X . . . . . . . . . . . . . . . . . . . 2, 3, 32

15 U.S.C. § 717b(d) . . . . . . . . . . . . . . . . . . . . . . . . . . 5

15 U.S.C. § 717f(c)(1)(A) . . . . . . . . . . . . . . . . . . . . . . 4

15 U.S.C. § 717f(e) . . . . . . . . . . . . . . . . . . . . . . . . . . . 4

15 U.S.C. § 717r(d)(1) . . . . . . . . . . . . . . . . . . . passim

15 U.S.C. § 717r(d)(2) . . . . . . . . . . . . . . . . . . . . . . . 32

15 U.S.C. § 717r(d)(3) . . . . . . . . . . . . . . . . . . . . . . . 32

28 U.S.C. § 1254(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 3

33 U.S.C. § 1251(b) . . . . . . . . . . . . . . . . . . . . . . . . . . 1

33 U.S.C. § 1341(a) . . . . . . . . . . . . . . . . . . . . . passim

33 U.S.C. § 1341(a)(1) . . . . . . . . . . . . . . . . . . . . . 4, 33

310 CMR 1.01(5)(a) . . . . . . . . . . . . . . . . . . . . . . . . 15

310 CMR 1.01(5)(b) . . . . . . . . . . . . . . . . . . . . . . . . 15

310 CMR 1.01(12) . . . . . . . . . . . . . . . . . . . . . . . . . . 15

310 CMR 1.01(14)(f) . . . . . . . . . . . . . . . . . . . . . . . . 15

x

314 CMR 9.10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . . 14

310 MCR § 1.01(c) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

310 MASS. CODE REGS. 9.09(1)(e) . . . . . . . . . . . . 25

314 MCR § 9.10(1) . . . . . . . . . . . . . . . . . . . . . . . . . . 11

N.J.A.C. 7:7-28.3(b) . . . . . . . . . . . . . . . . . . . . . . . . . 25

N.J.A.C. 7:7A-21.3(b) . . . . . . . . . . . . . . . . . . . . . . . . 25

N.J.A.C. 7:14A-17.6 . . . . . . . . . . . . . . . . . . . . . . . . . 26

1 Pa. Code Chapters 31–35 . . . . . . . . . . . . . . . . . . . 28

1 Pa. Code Chapter 1021 . . . . . . . . . . . . . . . . . . . . . 28

25 Pa. Code § 92a . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

25 Pa. Code § 102 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

25 Pa. Code § 105 . . . . . . . . . . . . . . . . . . . . . . . . . . . . 5

25 Pa. Code § 1021.51 . . . . . . . . . . . . . . . . . . . . . . . 14

25 Pa. Code § 1021.52 . . . . . . . . . . . . . . . . . . . . . . 6, 7

25 Pa. Code §§ 1021.101-1021.134 . . . . . . . . . . . . . 28

25 Pa. Code § 1021.102 . . . . . . . . . . . . . . . . . . . . . . 15

25 Pa. Code § 1021.117 . . . . . . . . . . . . . . . . . . . . . . 15

25 Pa. Code § 1021.201 . . . . . . . . . . . . . . . . . . . . . . 15

2 PA. CONS. STAT. Ch. 5, Subchapter A . . . . . . . 28

42 Pa. C.S. § 723(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

42 Pa. C.S. § 763(a) . . . . . . . . . . . . . . . . . . . . . . . . . . 6

32 P.S. § 673.1 et seq. . . . . . . . . . . . . . . . . . . . . . . . . 5

xi

32 P.S. § 679.101 et seq. . . . . . . . . . . . . . . . . . . . . . . . 5

32 P.S. § 680.1 et seq. . . . . . . . . . . . . . . . . . . . . . . . . 5

35 P.S. § 691.1 et seq. . . . . . . . . . . . . . . . . . . . . . 5, 29

35 P.S. § 7514 . . . . . . . . . . . . . . . . . . . . . . . . . . 14, 15

35 P.S. § 7514(a) . . . . . . . . . . . . . . . . . . . . . . . . . 7, 28

35 P.S. § 7514(b) . . . . . . . . . . . . . . . . . . . . . . . . . . . 28

35 P.S. § 7514(c) . . . . . . . . . . . . . . . . 12, 13, 14, 15, 28

35 P.S. § 7514(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 31

35 P.S. § 7514(d)(1) . . . . . . . . . . . . . . . . . . . . . . . . . 12

RULE

Sup. Ct. R. 10(a) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 8

OTHER AUTHORITY

Channing Jones, “The Natural Gas Act, State

Environmental Policy, and the Jurisdiction of

the Federal Circuit Courts,” 42 Colum. J. Envtl.

L. 163 (2016) . . . . . . . . . . . . . . . . . . . . . . . . . . . . 23

1

PETITION FOR A WRIT OF CERTIORARI

Petitioners Delaware Riverkeeper Network, the

Delaware Riverkeeper, Maya van Rossum, and

Lancaster Against Pipelines petition for a writ of

certiorari to review the judgment of the United States

Court of Appeals for the Third Circuit.

This case strikes at the heart of our federal system.

State governments have traditionally played a central

role in regulating environmental impacts of various

types of construction projects. Congress’ intent to

maintain and reinforce this “cooperative federalism”

framework is explicitly stated in the Clean Water Act:

“It is the policy of the Congress to recognize, preserve,

and protect the primary responsibilities and rights of

States to prevent, reduce, and eliminate pollution,

[and] to plan the development and use . . . of land and

water resources.” 33 U.S.C. § 1251(b). Here, a federal

court decision has upended this balanced framework

and stripped Pennsylvania, and potentially many other

states, from discharging its statutory role in issuing

certifications based on state law.

Specifically, the Third Circuit in Delaware

Riverkeeper Network, et al. v. Secretary Pennsylvania

Department of Environmental Protection, et al., 903

F.3d 65 (3d Cir. 2018) (hereinafter “DRN”), supplanted

Pennsylvania’s definition of finality with regard to a

state issued certification and instead substituted a

federal standard. In doing so, the Third Circuit has

prematurely invoked the Natural Gas Act’s appeal

mechanism, which has wrought uncertainty as to

which states will have their administrative review

process preserved and which states will have them

preempted. Indeed, this uncertainty has already

2

materialized in the Third Circuit itself, whereby the

administrative review process in Pennsylvania is

preempted, while in neighboring New Jersey the same

administrative process is unchanged. Further, the

Third Circuit’s decision irreconcilably conflicts with the

way in which the First Circuit addressed the

preemptive effect of the Natural Gas Act. Furthermore,

the DRN decision commandeers Pennsylvania’s

legislative and administrative processes in violation of

the 10th Amendment.

Here, Petitioners Delaware Riverkeeper Network,

the Delaware Riverkeeper, and Lancaster Against

Pipelines’ challenged the issuance of a conditional

water quality certification pursuant to Section 401 of

the Clean Water Act, 33 U.S.C. § 1341(a) (“water

quality certification”). The Pennsylvania Department

of Environmental Protection (“Department”) issued the

Section 401 water quality certification to

Transcontinental Pipeline Company, LLC (“Transco”)

for the Atlantic Sunrise Pipeline Project (“Project”) on

or about April 5, 2016. The issuance was noticed in the

Pennsylvania Bulletin on April 23, 2016. The notice

directed any person aggrieved by the action to an

appeal with the Pennsylvania Environmental Hearing

Board (hereinafter “Board”). On or about May 5, 2016,

Petitioners filed the above-captioned action for review

of the Department’s decision to grant water quality

certification for the Project. On or about May 5, 2016,

Lancaster Against Pipelines also filed an

administrative appeal of the Department’s decision

with the Board.

There are no disputed issues of fact for the Court to

resolve. The issues are limited to matters of law.

3

Furthermore, the questions to be resolved by the Court

have industry wide import, as the this Court’s

resolution will determine the preemption or

preservation of state administrative review processes

for all appeals taken pursuant to Section 717r(d)(1) of

the Natural Gas Act in every state.

OPINIONS BELOW

The Court of Appeals opinion is reported at

Delaware Riverkeeper Network, et al. v. Secretary

Pennsylvania Department of Environmental Protection,

et al., 903 F.3d 65 (3d Cir. 2018). Petitioners’ Appendix

(“App.”) A.

JURISDICTION

The judgment of the Third Circuit was entered on

September 4, 2018. This Court’s jurisdiction is invoked

under 28 U.S.C. § 1254(1).

CONSTITUTIONAL AND STATUTORY

PROVISIONS INVOLVED

The Tenth Amendment to the United States

Constitution provides: “The powers not delegated to the

United States by the Constitution, nor prohibited by it

to the states, are reserved to the states respectively, or

to the people.”

15 U.S.C. § 717r(d)(1) of the Natural Gas Act states:

“The United States Court of Appeals for the circuit in

which a facility subject to section 717b of this title or

section 717f of this title 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 . . . State administrative agency

4

acting pursuant to Federal law to issue, condition, or

deny any permit, license, concurrence, or approval . . .

required under Federal law . . . .”

STATEMENT OF THE CASE

A. Statutory Background

The Natural Gas Act prohibits construction or

operation of a natural gas pipeline without a

Certificate of Public Convenience and Necessity from

the Federal Energy Regulatory Commission

(“Commission”). 15 U.S.C. § 717f(c)(1)(A). The Natural

Gas Act further requires that, prior to issuing a

Certificate of Public Convenience and Necessity, the

applicant must demonstrate compliance with the many

other federal laws and regulations that apply to the

pipeline project. See id. § 717f(e) (authorizing the

Commission to grant Certificates subject to “reasonable

terms and conditions”). In the instant matter the

Commission found that Transco demonstrated such

compliance because “it has received all applicable

authorizations required under federal law.”

Transcontinental Gas Pipe Line Co, LLC, 158 F.E.R.C.

¶ 61125, at App. C ¶ 10 (2017).

One of the applicable authorizations is a water

quality certification issued under Section 401 of the

Clean Water Act. 33 U.S.C. § 1341(a)(1). Section 401

requires a permit applicant to obtain “a certification

from the State in which the discharge . . . will originate

[to ensure] that any such discharge will comply with”

that State’s water-quality standards. Id. Therefore, in

order to receive a Certificate of Public Convenience and

Necessity from the Commission, a pipeline company

must apply for and receive water quality certifications

5

from each of the affected states. Pennsylvania has

specific statutes, regulations, and administrative

procedures that relate to the process of obtaining a

water quality certification. See Pennsylvania Clean

Streams Law, 35 P.S. § 691.1 et seq., the Stormwater

Management Act, 32 P.S. § 680.1 et seq., the Dam

Safety and Encroachments Act, 32 P.S. § 673.1 et seq.,

and the Flood Plain Management Act, 32 P.S. § 679.101

et seq., and the regulations found in 25 Pa. Code §§ 92a,

102, 105.

B. Appeals Process

1. Under The Natural Gas Act

The Natural Gas Act provides:

The United States Court of Appeals for the

circuit in which a facility subject to section 717b

of this title or section 717f of this title 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 . . . State administrative

agency acting pursuant to Federal law to issue,

condition, or deny any permit, license,

concurrence, or approval . . . required under

Federal law . . . .

15 U.S.C. § 717r(d)(1) (hereafter, “§ 717r(d)(1)”). The

Natural Gas Act does not amend the Clean Water Act

by implication nor displace the primacy Congress

expressly assigned to state control of water pollution.

See 15 U.S.C. § 717b(d) (nothing in this chapter affects

the rights of States under . . . the [Clean Water Act]”).

6

2. Under State Law

In Pennsylvania, after the Pennsylvania

Department of Environmental Protection issues a

water quality certification, aggrieved parties are

afforded the right to appeal such a decision for

administrative review before the Pennsylvania

Environmental Hearing Board within 30 days. 25 Pa.

Code § 1021.52.

Decisions of the Board may be

appealed to the appropriate federal or state court. 42

Pa. C.S. §§ 763(a), 723(a).

C. Procedural History

In response to the requirements of the Natural Gas

Act and Clean Water Act, Transco was required to

obtain a water quality certification from the

Pennsylvania Department of Environmental Protection

for the Project. App.48-54. In 2015, Transco formally

applied both to the Commission for a Certificate of

Public Convenience and Necessity and to the

Department for a Section 401 water quality

certification. App.6. Shortly thereafter, the Department

published notice in the Pennsylvania Bulletin

(Pennsylvania’s analogue to the Federal Register) of its

intent to grant Transco a water quality certification.

App.48-54. In April 2016, the Department issued

Transco’s Water Quality Certification. App.6.

In response to the Department’s notice, the

Petitioners filed two parallel challenges to the issued

Water Quality Certification. First, Delaware

Riverkeeper Network, the Delaware Riverkeeper, Maya

van Rossum, and Lancaster Against Pipelines sought

relief directly from the Third Circuit Court of Appeals

under the exclusive review provision of the Natural

7

Gas Act, 15 U.S.C. § 717r(d)(1). Second, Lancaster

Against Pipelines appealed the Department’s decision

to the Pennsylvania Environmental Hearing Board.1

Pennsylvania law specifically vests the Board with

the exclusive “power and duty to hold hearings and

issue adjudications” on orders, permits, licenses and

decisions of the Department, including a Section 401

water quality certification. 35 P.S. § 7514(a); see also 25

Pa. Code § 1021.52. In fact, the Board has thrice

determined that it has jurisdiction over precisely this

type of appeal. App.43; App.33-34; Delaware

Riverkeeper Network v. Commonwealth of

Pennsylvania, Department of Environmental Protection,

EHB Docket No. 2012-196-M, 2013 WL 604393

(February 1, 2013).

Nevertheless, the Board stayed its proceedings

pending a jurisdictional ruling from the Third Circuit.

In the Third Circuit case, petitioners argued that the

Board has jurisdiction over the Department’s issuance

of Transco’s Water Quality Certification and must

provide finality by administratively reviewing the

proceeding before the Third Circuit hears any appeal

pursuant to Section 717r(d)(1). App.8. On September 4,

2018, the Third Circuit rejected Petitioners’ arguments,

and held that the Natural Gas Act preempted

Pennsylvania’s administrative review process at the

Board for the water quality certification. App.1-26.

1

See Lancaster Against Pipelines v. Commonwealth, No. 2016-075L (Pa. Envtl. Hrg. Bd.).

8

REASONS FOR ALLOWANCE OF THE WRIT

I.

UNDER RULE 10(a) THIS COURT SHOULD

RESOLVE THE CIRCUIT SPLIT OVER

WHETHER STATE ADMINISTRATIVE LAW

PROCEDURES ARE PRESERVED

PURSUANT TO APPEALS TAKEN UNDER

SECTION 717r(d)(1) OF THE NATURAL

GAS ACT

A. The Third Circuit’s Opinion In DRN

Irreconcilably Conflicts With The First

Circuit’s Opinion In Berkshire And The

Second Circuit’s Opinion In Murphy

The question raised in DRN was whether or not the

issuance of a Clean Water Act Section 401 water

quality certificate by the Department was a final action

subject to § 717r(d)(1) of the Natural Gas Act such that

the state administrative review process was entirely

preempted.

The Third Circuit’s resolution of that question

irreconcilably conflicts with the First Circuit’s handling

of precisely that same question in Berkshire

Environmental Action Team, Inc. v. Tennessee Gas

Pipeline, LLC, 851 F.3d 105 (1st Cir. 2017). It also

conflicts with the Second Circuit’s holding in Murphy

v. New Milford Zoning Comm’n, 402 F.3d 342 (2d Cir.

2005). Lastly, not only is the Third Circuit’s decision in

DRN at conflict with decisions of the First Circuit and

Second Circuit, but the decision cannot be reconciled

with the Third Circuit’s later decision in Township of

Bordentown, New Jersey v. Federal Energy Regulatory

Commission, 903 F.3d 234 (3d Cir. 2018).

9

1. The Third Circuit’s Finding Of

Finality In DRN Conflicts With The

First Circuit’s Holding In Berkshire

The First Circuit squarely addressed the scope of

the preemptive effect of Section 717r(d)(1) in Berkshire

Environmental Action Team, Inc. v. Tennessee Gas

Pipeline, LLC, 851 F.3d 105 (1st Cir. 2017) (hereinafter

“Berkshire”), where the court found that the state

administrative appeal process is preserved and must be

completed prior to United States Court of Appeals

review pursuant to Section 717r(d)(1). Here, the Third

Circuit came to the opposite conclusion when faced

with the same question.

i. The Determination Of The

Finality Of A State Issued Permit

Must Respect State Law

The lynchpin of the Third Circuit’s ruling in DRN,

is that the “finality requirement itself, along with the

presumption that Congress intended us to apply it, are

creatures of federal, not state, law.” App.10. The court

applied “a federal finality standard to determine

whether Congress has made the results of that process

reviewable under the Natural Gas Act.” App.12. This is

a crucial determination because to the extent state

law – and not federal law – informs the finality

determination for a state issued permit there is no

question that the Department’s action was not final.

The Third Circuit does not cite any authority

supporting its decision to disregard this aspect of

Pennsylvania law, and, in any case, the Third Circuit’s

conclusion expressly conflicts with the First Circuit’s

interpretation of finality in Berkshire. App.14-16. As

10

such, the Third Circuit prematurely invoked Section

717r(d)(1), prior to “final” agency action.

The Berkshire panel was faced with the question of

whether the federal circuit court had jurisdiction to

review a water quality certification issued by the

Massachusetts Department of Environmental

Protection (“MassDEP”) prior to the completion of a

state administrative appeal process. Berkshire, 851

F.3d at 108. The panel first noted that it is “a longstanding and well-settled ‘strong presumption . . . that

judicial review will be available only when agency

action becomes final.’” Id. at 109 (quoting Bell v. New

Jersey, 461 U.S. 773, 778 (1983)). “In a literal sense,

state agencies repeatedly take ‘action’ in connection

with applications for water quality certifications . . . we

see no reason, though, to think that Congress wanted

us to exercise immediate review over such preliminary

and numerous steps that state agencies may take in

processing an application before they actually act in

the more relevant and consequential sense of granting

or denying it.” Id. at 108. “An agency action is ‘final’

only where it ‘represents the culmination of the

agency’s decision making process and conclusively

determines the rights and obligations of the parties

with respect to the matters at issue.’” Id. at 111

(quoting Rhode Island v. EPA, 378 F.3d 19, 23 (1st Cir.

2004)).

To determine whether MassDEP’s action was final,

the First Circuit relied on the “substance of the

Massachusetts regulatory regime” to direct its decision.

Id. at 112. In doing so, the Berkshire panel examined

several provisions of the Massachusetts Code to come

to its conclusion on finality. Specifically, the panel

11

looked to portions of state law which mandate that only

after the administrative process is complete is there an

“issuance of a final decision.” Id. at 112 (citing 310

MCR § 1.01(c)); see also id. (citing 314 MCR § 9.10(1)).

Relying on these provisions, the Berkshire panel found

state law dictated that the “initial letter granting a

water quality certification . . . [was] not a final agency

action.” Id.

Additionally, the First Circuit concluded, “[w]e see

no indication that Congress otherwise intended to

dictate how (as opposed to how quickly) MassDEP

conducts its internal decision-making before finally

acting.” Id. at 113. The Berkshire panel’s reliance on

state law to determine finality respects the wellestablished “scheme of cooperative federalism” upon

which the Clean Water Act is built. United

States v. Cooper, 482 F.3d 658, 667 (4th Cir. 2007); see

also S. Ohio Coal Co. v. Office of Surface Mining,

Reclamation & Enf’t, Dep’t of Interior, 20 F.3d 1418,

1427 (6th Cir. 1994) (“[T]he CWA sets up a system of

‘cooperative federalism,’ in which states may choose to

be primarily responsible for running federally-approved

programs”).

Rather than respecting this system of cooperative

federalism, the Third Circuit, in DRN, discarded the

way in which Pennsylvania defined finality and

inserted its own federal standard, usurping the power

of administrative review from Pennsylvania’s longestablished state administrative review process.

App.10. Pennsylvania state law leaves no doubt on the

issue of finality, by expressly and unequivocally stating

that “no action of [the Department] adversely affecting

a person shall be final as to that person until the

12

person has had the opportunity to appeal the action to

the [B]oard . . . .” 35 P.S. § 7514(c). As further

explained by the Board:

As far as the [Board] is concerned, a

[Department] action only becomes final following

an opportunity to appeal the action to the

Environmental Hearing Board. Pennsylvania

law is very clear on this point: “[N]o action of

the department [of environmental protection]

adversely affecting a person shall be final as to

that person until the person has had an

opportunity to appeal the action to the

[environmental hearing] board. . . .” 35 P.S.

§ 7514(c). Courts in Pennsylvania have long

held “that a Department action is not final

until an adversely affected party has had

an opportunity to appeal the action to this

Board.”

App.33-34 (emphasis added). In this context, the Board

has stated that “[w]hether a state agency action is final

is a question of state law,” not federal law. App. 33.

As such, Pennsylvania law dictates that no action of

the Department is “culminated” or “conclusively

decided” unless and until a person has had the

opportunity for review by the Board. See 35 P.S.

§ 7514(c). Indeed, a proper appeal to the Board may

very well negate the Department’s initial certificate

approval by virtue of the Board’s power to grant a

supersedeas upon cause shown. 35 P.S. § 7514(d)(1); see

also Bradley and Amy Simon v. DEP, EHB Docket No.

2017-019-L, 2017 WL 2399755 (May 25, 2017); Center

for Coalfield Justice and Sierra Club v. DEP, EHB

Docket No. 2016-155-B, 2017 WL 663900 (February 1,

13

2017). Therefore, “there is no doubt whatsoever that

the Department’s certification of Transco’s project was

not a final action.” App.43.

Furthermore, this Court in Darby v. Cisneros, 509

U.S. 137 (1993), recognized that an agency may require

an initial administrative decision to be appealed

administratively before it may be deemed to be the

kind of “final” administrative action that may be

challenged in court. Id. at 153–54; see also Global

Tower Assets, LLC v. Town of Rome, 810 F.3d 77, 86

(1st Cir. 2016) (administrative review can “impose[] an

exhaustion requirement and make[] plain that the

underlying agency action is not a final one”) (internal

quotations omitted) (emphasis original). Here,

Pennsylvania has enacted a comprehensive regulatory

and administrative scheme for the protection of the

environment within the Commonwealth, and, pursuant

to this structure, the water quality certificate at issue

was not “final”. See 35 P.S. § 7514(c). This scheme

specifically dictates, in no uncertain terms, that

Department action is not final, and therefore subject to

Section 717r(d)(1) of the Natural Gas Act, until

aggrieved parties have had an opportunity to appeal

such action for administrative review to the Board.

Therefore, the Third Circuit’s dismissal of the way

in which state law addresses finality, and conjuring of

its own federal standard, conflicts with the reasoning

and statements of law in Berkshire and those

previously articulated by this Court.

14

ii. The Substantive Functions Of The

Administrative Review Process in

DRN and Berkshire Are The Same

Beyond the plain statement of finality in the

Pennsylvania Code, the substance and function of the

administrative process in Massachusetts parallels the

process in Pennsylvania. Indeed, the Board has

reviewed the procedures in Massachusetts, compared

it with its own procedures, and found that

“Pennsylvania’s procedures are nearly identical in

substance to the Massachusetts procedures that the

First Circuit found not to be final until the adversely

affected party had an opportunity to take advantage of

that state’s hearing process.” App.43 (emphasis added).

In all consequential forms, the Pennsylvania Code

and Massachusetts code function in the same manner.

This comes as no surprise, as the court in Berkshire

predicted that parallel review processes would likely be

found in numerous states noting, “the manner in which

Massachusetts has chosen to structure its internal

agency decision-making strikes us as hardly

unusual . . . .” Berkshire, 851 F.3d at 112. For example,

in both states the state agency action is not “final” until

opportunity for an administrative appeal. Compare 35

P. S. § 7514(c); with Berkshire, 851 F.3d at 112. In both

states agency action is subject to an administrative

appeal with an adjudicatory hearing. Compare 35 P. S.

§ 7514; 25 Pa. Code § 1021.51; with 314 CMR 9.10(1).

Both states have an administrative adjudication that

is de novo review of agency action. Compare

Leatherwood, Inc. v. Com., Dept. of Environmental

Protection, 819 A.2d 604, 611 (Pa. Cmwlth. 2003); with

Berkshire, 851 F.3d at 112. Both states’ adjudicatory

15

hearings can include witness testimony and other

evidence. Compare 25 Pa. Code § 1021.117; with 310

CMR 1.01(5)(a), (b). Both states allow for the

adjudication to include pre-hearing discovery. Compare

25 Pa. Code § 1021.102; with 310 CMR 1.01(12). And,

finally, in both states a party can appeal to the state

judiciary following a decision by an administrative law

judge. Compare 25 Pa. Code § 1021.201; with 310 CMR

1.01(14)(f).

Similar to the administrative process in Berkshire,

the Board does nothing more than provide the

administrative review of the Department’s actions. In

creating the Board, the Pennsylvania legislature

directed that “[t]he board shall continue to exercise the

powers to hold hearings and issue adjudications which

(powers) were vested in agencies listed in section 1901A of the act of April 9, 1929 (P.L.177, No.175), known

as The Administrative Code of 1929.” 35 P.S. § 7514(c).

In the judgment of the Pennsylvania Legislature, the

optimal administrative procedure for the

Commonwealth of Pennsylvania was to create the

Board to perform some of the duties of the Department,

including the administrative review process for

Department decisions. See 35 P.S. § 7514. Indeed, the

Pennsylvania Supreme Court characterized the

Department and the Board as together being part-andparcel of the governing environmental administrative

structure. See Tire Jockey Serv., Inc. v. Dep’t of Envtl.

Prot., 915 A.2d 1165, 1185 (2007) (describing “[t]he

administrative structure that governs environmental

regulation in Pennsylvania” as consisting of three

“inter-related branches” including the Environmental

Quality Board, the Department, and the Board). The

Board is, in essence, operating down the hall from,

16

instead of within the same office as, the Department.

As such, despite the fact that the Board is not within

the Department as it is in Berkshire, it is a superficial

distinction without a difference as the structural and

operational administrative processes in Pennsylvania

and Massachusetts are the same.

Considering the substantively matching provisions

governing administrative appellate review in DRN and

Berkshire, the conclusions of the First and Third

Circuits irreconcilably conflict.

2. The Third Circuit’s Finding Of

Finality In DRN Conflicts With The

Second Circuit’s Holding In Murphy

Similar to Berkshire, other Circuit Courts have

looked to state law to determine the finality of state

agency action in federal court proceedings. All of these

decisions are also now at conflict with the Third

Circuit’s decision in DRN.

For example, in Murphy v. New Milford Zoning

Comm’n, 402 F.3d 342 (2d Cir. 2005), the Second

Circuit relied on the way in which state law defined

finality to guide its decision with regard to a zoning

issue. There, homeowners were served by the local

zoning commission with a cease and desist order

related to large prayer meetings being held at their

home. Id. at 345. The homeowners brought an action in

federal court alleging, among other things, that their

First Amendment rights had been violated. Id. at 345346. The Second Circuit deferred judgement, accepting

the state’s definition of what constituted a “final”

decision and noting the importance of state

administrative procedures. Id. at 351 (looking to the

17

Connecticut General Statutes to determine whether a

cease and desist order was final). In this context, the

Second Circuit found “courts have recognized that

federalism principles also buttress the finality

requirement.” Murphy, 402 F.3d at 348; see also Kurtz

v. Verizon New York, Inc., 758 F.3d 506, 512 (2d Cir.

2014) (allowing the full record to be developed “gives

proper respect to principles of federalism”). Specifically,

the Murphy court held that:

The Zoning Board of Appeals possessed the

authority to review the cease and desist order de

novo to determine whether the zoning

regulations were properly applied. In fact, a

zoning board of appeals “is in the most

advantageous position to interpret its own

regulations and apply them to the situations

before it.” . . . For this reason, the Connecticut

Supreme Court recognized in Port Clinton that

a zoning board of appeals will typically be the

venue from which a final, definitive decision will

emanate. It thus stated: “In many instances a

final decision by the ‘initial decisionmaker,’

really means a decision by the zoning board of

appeals, when that body ... is exercising its

power to grant variances and exceptions.”

Id. at 352-53 (citations omitted). The Murphy court

found that the requirement that the homeowners

obtain a final definitive decision from the local zoning

authority as directed under Connecticut law ensures

that there will be a record of concrete and established

facts should the occasion of federal review arise. Id. at

352. Concluding that, “[u]ntil this variance and appeals

process is exhausted and a final, definitive decision

18

from local zoning authorities is rendered, this dispute

remains a matter of unique local import over which we

lack jurisdiction.” Murphy, 402 F.3d at 354. Further,

such a structure ensures “that federal review – should

the occasion eventually arise – is premised on concrete

and established facts” as proscribed by state law. Id. at

353.

A number of other US Court of Appeals have

followed the Second Circuit’s logic, including the Third

Circuit. See Taylor Inv., Ltd. v. Upper Darby Tp., 983

F.2d 1285, 1292 (3d Cir. 1993) (federal court relying on

the Pennsylvania Code to determine finality of a zoning

decision); Hoehne v. County of San Benito, 870 F.2d

529, 532 (9th Cir. 1989) (decision is not final until the

“government entity charged with implementing the

regulations has reached a final decision”); see also

Spence v. Zimmerman, 873 F.2d 256, 262 (11th Cir.

1989). While these decisions are largely zoning cases,

the underlying rationale regarding deference to state

finality standards when making decisions implicating

state law nevertheless applies with equal force.2

2

The singular case cited by the court in DRN to support its

holding, Williamson Cly. Reg’l Planning Comm’n v. Hamilton Bank

of Johnson City, 473 U.S. 172, 194, (1985) (hereinafter

“Williamson”), is inapposite. Williamson involved a developer’s

lawsuit against a planning commission for an alleged taking of

property. The court held that the takings claim was not ripe

because “the Commission’s denial of approval does not conclusively

determine whether respondent will be denied all reasonable

beneficial use of its property, and therefore is not a final,

reviewable decision.” Id. 473 U.S. at 194. While the court held that

“[t]he question whether administrative remedies must be

exhausted is conceptually distinct . . . from the question whether

an administrative action must be final before it is judicially

19

The finality of particular agency action must be

considered in light of the whole statutory scheme

within which the particular action is undertaken. State

of Tex. v. U.S. Dept. of Energy, 764 F.2d 278 (5th Cir.

1985). As noted by the DRN panel, the “Administrative

Procedure Act authorizes a broad scope of review,” and

specifically does not “limit[] courts to considering only

federal law.” App 25. “The presumption against federal

preemption of state law is one of ‘dual jurisdiction’

which results from reasons of comity and mutual

respect between the two judicial systems that form the

framework of our democracy.” Kiak v. Crown Equip.

Corp., 989 A.2d 385, 390 (Pa. Super. Ct. 2010) (internal

citation omitted). Nothing in case law, statutory law, or

the Third Circuit’s decision provides that a federal

court should disregard Pennsylvania law, with regard

to a state issued authorization, and instead adopt its

own definition of finality.

The proper presumption is that the federal courts

must respect Pennsylvania procedure. Pennsylvania, in

its wisdom, established the Board as an administrative

body with special expertise in reviewing actions of the

Department and tasked with establishing the record

for those Department actions, and, therefore, its

review. See Harman Coal Co. v. Com., Dept. of

Environmental Resources, 384 A.2d 289, 292 (Pa.

Cmwlth. 1978) (finding that “members of the [Board]

and its staff workers have an expertise in the scientific

and technical aspects of environmental protection not

possessed by this Court”) (citations omitted). As such,

reviewable,” the Williamson court did not, in any way, hold that a

state’s definition of finality in its regulatory scheme may be

disregarded by the courts. Id. 473 U.S. at 192.

20

the Board is uniquely qualified, and in the most

advantageous position to interpret and apply

Pennsylvania environmental law to Department

actions. Absent a final determination by the Board, as

required by state law, any later judicial review would

proceed without: (1) development of a full record, (2) a

precise demonstration of how the state specific

regulations should be applied to particular project, and

(3) thus would risk premature interference in complex

environmental matters of local concern more aptly

suited for resolution by a body specifically designed to

address precisely these issues.3

3

Ironically, the Natural Gas Act requires the Federal Energy

Regulatory Commission to complete its administrative process

prior to judicial review of its actions, despite the fact that the

Commission’s issuance of a Certificate of Public Convenience and

Necessity immediately imbues a possessor of the Certificate with

a number of concrete rights, including eminent domain rights.

Papago Tribal Utility Auth. v. FERC, 628 F.2d 235, 238-39 & n.11

(D.C. Cir. 1980) (explaining that a party must complete the

administrative appeals process before it may file a petition for

review, and that the order denying the requests for rehearing is

the final, reviewable agency order); see also Energy Transfer

Partners, LP v. FERC, 567 F.3d 134, 141 (5th Cir. 2009). “There is

good reason to prohibit any litigant from pressing its cause

concurrently against both the judicial and the administrative

fronts: a favorable decision from the agency might yet obviate the

need for review by the court,” or the agency appeals process might

alter the issues ultimately presented for review, “mak[ing] the case

moot and [the court’s] efforts supererogatory.” Clifton Power v.

FERC, 294 F.3d 108, 111-12 (D.C. Cir. 2002)(citations omitted).

See also Alcoa Power Generating Inc. v. FERC, 643 F.3d 963, 967

(D.C. Cir. 2011) (citing Devia v. NRC, 492 F.3d 421, 424 (D.C. Cir.

2007) (claim may be unripe because the court may never need to

decide it)). The same logic applies here.

21

B. The Third Circuit’s DRN Decision Has

Resulted In An Intra-Circuit Split That

Preserved The Administrative Review

Process In New Jersey But Preempted

The Same Process In Pennsylvania

The question of the preemptive scope and reach of

Section 717r(d)(1) has implications far beyond this

case. Each state has different statutory schemes

regarding the way in which the state reviews and

approves water quality certifications – and other

related state permits issued for Commission

jurisdictional projects. The Third Circuit’s DRN opinion

sows uncertainty as to how, and in what forum, an

appeal of a state water quality certification, or any

other state approval required pursuant to a

Commission jurisdictional project, occurs.

This uncertainty has already manifested within the

Third Circuit, as the Third Circuit’s decision

engendered an intra-circuit split regarding how the

administrative appeals process is preserved in New

Jersey, yet, preempted in neighboring Pennsylvania. A

day after the DRN decision, the Third Circuit panel in

Township of Bordentown, New Jersey v. Federal Energy

Regulatory Commission, 903 F.3d 234 (3d Cir. 2018)

(hereinafter “Bordentown”), held that the 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.” Bordentown, 903 F.3d at 268.

In Bordentown, Transco planned a separate upgrade

of its natural gas pipeline system in New Jersey and

applied to both the Commission for a Certificate of

Public Convenience and Necessity and to the New

22

Jersey Department of Environmental Protection (“New

Jersey”) for a Section 401 water quality certification.

Id. at 244. In 2015, the Commission granted the

Certificate of Public Convenience and Necessity

contingent on Transco’s compliance with all other

required authorizations. Id. at 245. On March 13, 2017,

New Jersey issued the water quality certification,

among other approvals. Id. In accordance with New

Jersey administrative procedures, the petitioners

timely sought an administrative hearing with regard to

New Jersey’s issuance of the permits. Id. at 243. New

Jersey denied the petitioners’ request for an

administrative hearing because it believed that its

administrative procedures were preempted by the

Natural Gas Act. Id.

Yet, the Third Circuit Bordentown panel found that

“the only plausible” conclusion to draw from the text of

the Natural Gas Act is “that § 717r(d)(1) does not

preempt state administrative review of interstate

pipeline permitting decisions.” Id. at 269 (emphasis

added). In finding this, the Bordentown panel closely

analyzed the language of the Natural Gas Act and held

that a state’s administrative proceedings are not “civil

actions” over which the Third Circuit has exclusive

jurisdiction:

…§ 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 in original].

Congress therefore clearly understood the

difference between establishing direct judicial

“review” over agency action (supplanting any

23

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 § 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. at 268 (emphasis added).

The Bordentown panel took pains to discuss how, if

it had accepted Transco’s arguments, the Natural Gas

Act would “cut off any state review other than the

initial decision,” making all initial state administrative

decisions by default final decisions. Id. at 269. Finding

that, if all initial decisions are final decisions, then the

state administrative review of pipeline permitting

decisions provided for in the Natural Gas Act would be

eviscerated.4 Specifically, the Bordentown panel

concluded that,

viewed in light of both federal and New Jersey

authority, and barring any specific statutory

language to the contrary, a hearing before an

administrative body is not a “civil action.”

Accordingly, such hearings are not impacted by

4

For a detailed discussion of state’s rights in this context, see

Channing Jones, “The Natural Gas Act, State Environmental

Policy, and the Jurisdiction of the Federal Circuit Courts,” 42

Colum. J. Envtl. L. 163 (2016).

24

§ 717r(d)(1)’s assignment to the federal Courts of

Appeals the exclusive jurisdiction over civil

actions challenging a state agency’s permitting

decision made pursuant to federal law. Because,

as relevant here, the NGA explicitly permits

states “to participate in environmental

regulation of [interstate natural gas]

facilities” under the CWA, Delaware I, 833

F.3d at 368, and 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, the NGA 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 (citations omitted)(emphasis added). The

Natural Gas Act “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 . . .” Id. (emphasis

added). In other words, the primary question is

whether the proceeding is one before an administrative

agency and therefore not a “civil action” over which the

Third Circuit has exclusive jurisdiction. Therefore, it is

without dispute that the proceeding before the Board is

one before an administrative agency.

In contrast, the DRN panel cut off state

administrative review after the initial decision of the

Department. App.10-13. The DRN panel held that the

decision of the Department was the final decision

despite Pennsylvania administrative procedure that

25

provides for a hearing before the Board. App.10-13.

DRN and Bordentown are therefore in conflict, and

future petitioners and state administrative agencies

are left to wonder how to proceed.

Additionally, in DRN, the panel found significant

the fact that that the Department’s decision “was

immediately effective.”App.14. The DRN panel noted

the “First Circuit, by contrast, faced a Massachusetts

regulatory regime in which the agency’s initial decision

was ineffective until either the time to appeal expired

or a final decision on appeal issued.” App.14 (citing 310

MASS. CODE REGS. 9.09(1)(e)). The DRN court

further clarified that:

Put another way, Berkshire Environmental

addressed a provisional order that could become

final in the absence of an appeal, while we are

presented with a final order that could be

overturned in the event of an appeal. In that

regard, PADEP’s order is no less final for the

availability of EHB review than a federal

agency’s is for the availability of review in this

Court.

App. 15.

However, like the Board, the administrative appeals

process in the state of New Jersey is also “immediately

effective.” See, e.g., Freshwater Wetlands Protection

Act Rules, N.J.A.C. 7:7A-21.3(b), (“the operation of the

permit or authorization is not automatically stayed” by

a request for an adjudicatory hearing); Coastal Zone

Management Rules, N.J.A.C. 7:7-28.3(b) (“the

operation of the permit or authorization is not

automatically stayed” by a request for an adjudicatory

26

hearing); and the New Jersey Pollutant Discharge

Elimination System, N.J.A.C. 7:14A-17.6 (“The

Department’s grant of a request for an adjudicatory

hearing shall not automatically stay any contested

permit condition(s)”). As such, the primary reason the

DRN panel distinguished the Berkshire decision is

undercut by Bordentown.

If this Court were to allow the decisions in DRN and

Bordentown to remain, there would be conflicting and

inequitable standards intact in the Third Circuit.

Under the DRN rationale, the Department action was

final, Pennsylvania state administrative procedures

were preempted, and the Third Circuit had exclusive

jurisdiction over petitioners’ objections to the

Department’s action. Under the Bordentown rationale,

the Department action is final but Pennsylvania

administrative procedures are not subject to

preemption by the Third Circuit and may continue to

operate as they would in the ordinary course under

state law. These holdings are not reconcilable.

The fact is that the DRN panel’s decision has

already wrought uncertainty to state agencies under

the Third Circuit’s own jurisdiction – as evinced by

New Jersey’s initial denial of the administrative review

hearing based on jurisdiction. This foretells even

greater confusion outside of the Third Circuit as

various courts must attempt to juggle the positions and

interpretations of finality and the uncertain

preemptive force of Section 717r(d)(1).

27

C. The Third Circuit’s Decision In DRN

Condemns The Third Circuit To

Reviewing Incomplete And Inadequate

Records In Section 717r(d)(1) Appeals

And Strips Aggrieved Parties Of Their

Due Process Rights

The Third Circuit’s usurpation of Pennsylvania’s

clearly defined and well-established administrative

review process has significant consequences for both

the quality of the Third Circuit’s review of future

appeals, and the due process rights of aggrieved

parties; as the rationale in the DRN decision dictates

that any future rulings with regard to 717r(d)(1)

challenges of state issued permits will rely on

piecemeal administrative records.

In Pennsylvania, appeals to the Environmental

Hearing Board are the means by which the record of a

Department action is developed and “[a] party’s due

process rights are protected . . . .” Fiore v. Department

of Environmental Protection, 655 A.2d 1081 (Pa.

Cmwlth. 1995) modified, 351 A.2d 606 (Pa. 1976))

(citing Commonwealth v. Derry Township, 314 A.2d 868

(Pa. Cmwlth. 1973), modified, 351 A.2d 606 (Pa. 1976));

see also Domiano v. Commonwealth, Department of

Environmental Resources, 713 A.2d 713, 717 (Pa.

Cmwlth. 1998) (The Board exercises its primary

jurisdiction so that, inter alia, “a record can be fully

developed . . . .”). Specifically, the Pennsylvania

Department of Environmental Protection does not have

internal hearing examiners and, therefore, does not

prepare formal written findings, a formal

administrative record, or issue adjudications as part of

its permit application review process. Rather, the

28

Department – by express statutory design – is

specifically exempt from these record-keeping and

record-developing requirements. See 35 P.S. § 7514(a)(c), 2 PA. CONS. STAT. Ch. 5, Subchapter A, and the

regulations thereunder at 1 Pa.Code Chapters 31–35,

1021. As such, the supposed record produced by the

Department, and later relied upon by the Third Circuit

in reviewing the agency’s action cannot resemble a

traditional administrative record.

Pennsylvania’s laws and regulations mandate that

the record be compiled during the state administrative

review process, so it is the Board that is charged with

creation of the administrative record. Indeed, the

Board’s administrative review is a de novo review and

requires pre-hearing discovery, an evidentiary hearing,

and post-hearing submissions. 25 Pa. Code

§§ 1021.101-1021.134; see also Leatherwood, Inc. v.

Com., Dept. of Environmental Protection, 819 A.2d 604,

611 (Pa. Cmwlth. 2003). This process is key because it

is by virtue of an appeal to the Board that the

Department and aggrieved parties develop the record

that the Third Circuit can later review under the

arbitrary and capricious standard. See, e.g., Morcoal

Company v. Dep’t of Envit. Resources, 459 A.2d 1303

(Pa. Cmwlth. 1983) (an appeal to the Board protects

important constitutional due process right of

appellants). It is axiomatic that bad facts make bad

law, and, without a full record to review, the Third

Circuit relegates itself to deciding complex state law

environmental issues on incomplete records. This is

contrary to the holdings it other circuits as, it is

precisely this concern of creating a complete factual

record which undergirds the decisions in Murphy and

its progeny, allowing aggrieved parties to complete the

29

state administrative process prior to judicial review.

See Murphy, 402 F.3d at 352-53.

Furthermore, the DRN decision strips the due

process rights of Pennsylvania citizens aggrieved by

the issuance of the substantive permits issued

pursuant to the water quality certifications by limiting

the record of review and opportunity for participation

in the process. For example, three underlying

substantive state permits comprise Pennsylvania’s

water quality certificate. App.48-49. One of these

permits is a National Pollutant Discharge Elimination

System (“NPDES”) permit for the discharge of water

pursuant to Pennsylvania’s Clean Streams Law (35

P.S. §§ 691.1 – 691.1001). App.49. Like appeals of the

water quality certification itself, an appeal of the

underlying NPDES permit is also taken pursuant to

Section 717r(d)(1). However, unlike water quality

certification, the Department does not provide any

opportunity for comment or notice prior to the

Department approving a NPDES permit. See

Transcript of Oral Argument page number 44, lines 2023, Delaware Riverkeeper Network, et al. v.

Pennsylvania Department of Environmental Protection,

et al., Third Circuit Court of Appeals, Docket No. 162211, Oral Argument (November 7, 2017) (Department

admitting that, “[t]here is no comment period. There is

no notice in the Pennsylvania Bulletin of receipt for a

request and notice of intent to use an [NPDES] general

permit”).

The Department does not publish notice of an

NPDES general permit application in the Pennsylvania

Bulletin, does not provide public notice in public

newspapers, does not provide public notice anywhere

30

else, and does not accept comments on the NPDES

general permit. Indeed, the Department simply does

not have a process for a party to comment on this type

of NPDES permit. This may not be a problem if an

aggrieved party has the right to challenge the NPDES

permit and develop a record de novo before the Board;

however, the Third Circuit’s decision eliminates this

opportunity. Thus, an aggrieved party is left without

notice and an opportunity to comment on an NPDES

permit application, and without an opportunity to

create a meaningful record before the Board. The DRN

panel itself noted that “[t]he essence of due process is

notice and an opportunity to be heard,” and that

“opportunity to comment and to petition this Court for

review is enough” to satisfy due process concerns.

App.17. Yet, the court’s ruling in DRN strips aggrieved

parties of the very same opportunity for notice and

comment that it recognized as providing due process.

Moreover, under the Third Circuit’s scheme

articulated in DRN, a challenge to a NPDES permit in

a federal circuit court pursuant to Section 717r(d)(1) –

without administrative review by the Board – would

be a futile effort as the record for such an appeal would

be strictly limited to the record that was before the

agency at the time that it rendered its decision. See

Camp v. Pitts, 411 U.S. 138, 142 (1973) (holding that

“the focal point for judicial review should be the

administrative record already in existence, not some

new record made initially in the reviewing court”).

Because aggrieved parties have no ability to create a

meaningful record, they cannot cite or rely on any

evidence challenging or questioning the Department’s

decision in any subsequent judicial proceeding before

the Third Circuit.

31

Finally, it is not surprising that the Department

lacks notice and comment procedures for the NPDES

permits because the Department’s review and approval

process was never contemplated to be reviewed in a

case where original jurisdiction is the US Court of

Appeals for the Third Circuit. Rather, the permits

issued by the Department have always been heard de

novo by the Board. Indeed, as described above, Board

review is an integral part of Pennsylvania

environmental permitting and cannot be truncated

without affecting the finality of a permit and causing

serious due process problems. See 35 P.S. § 7514(d);

Consol Pa. Coal Co. v. Dept. of Env’tl Prot., 2011 WL

4943794, at *3 (Pa. Env. Hrg. Bd., Aug. 26, 2011).

As a result of the Third Circuit’s decision, a

landowner with a stream running through her back

yard has no opportunity to engage with the

Department regarding the issuance of a NPDES permit

prior to the Department’s authorization of a potential

withdrawal from or discharge to that landowner’s

stream. Aggrieved parties have no notice of when a

project applicant submits an application, what was in

the application, when the Department considered the

application complete, and therefore whether the

application met the substantive criteria for coverage

under the NPDES general permit and governing

technical standards. Based on the DRN decision, such

an aggrieved party would have no opportunity to build

or otherwise challenge the record prior to judicial

review by a federal appellate court. This is not how

Section 717r(d)(1) was designed to operate, as such a

draconian interpretation not only reduces the quality

of the record the Third Circuit must rely on when

deciding whether the Department’s action was in

32

conformance with law, but also fatally undercuts an

aggrieved party’s ability to challenge the permit.5

II.

THE

THIRD

CIRCUIT

COURT’S

PREEMPTION OF BOARD REVIEW

VIOLATES THE 10TH AMENDMENT

The Tenth Amendment to the United States

Constitution provides: “The powers not delegated to the

United States by the Constitution, nor prohibited by it

to the states, are reserved to the states respectively, or

to the people.” As set forth supra, the Natural Gas Act

and the Clean Water Act do not preempt state

regulatory authority. To the contrary, they expressly

recognize a role for the states in the regulatory process.

The Clean Water Act provides that any person

applying for a federal license or permit for any project

“which may result in any discharge into the navigable

waters,” must receive a certification from the state in

which the project is located certifying that the expected

discharge into navigable waters will comply with

applicable provisions of the Clean Water Act and state

water quality standards. See Alabama Rivers Alliance

5

To the extent there is concern that a Board proceeding would

cause undue delay to a Commission jurisdictional Project, the

Natural Gas Act accounts for this concern. The Natural Gas Act

specifically provides project applicants with the ability to seek

relief from agency delay in the U.S. Court of Appeals for the

District of Columbia, which has the ability to “set a reasonable

schedule and deadline for the agency to act on remand.” 15 U.S.C.

§ 717r(d)(2)-(3). See also Weaver’s Cove Energy, LLC v. State of

Rhode Island Dept. of Env’tl Management, 524 F.3d 1330 (D.C. Cir.

2008) (considering appeal by company under Section 717r(d)(2) of

the Natural Gas Act to an action on appeal to state administrative

agency).

33

v. F.E.R.C., 325 F.3d 290, 297 (D.C. Cir. 2003) (citing

33 U.S.C. § 1341(a)(1)). Since the federal government

has not preempted the state’s role in approvals for

natural gas pipelines but, to the contrary, has

specifically given the states a role in this process, on

what authority does the federal government then

disregard the very administrative procedure that the

state has developed to comply with the federal

requirements?

As the Honorable Richard P. Mather of the Board

has stated:

Congress may not simply commandeer state

officials and agencies, rewrite state laws, and

direct that state agency officials defend state

agency decisions in federal court in violation of

state laws enacted by the Pennsylvania General

Assembly.

App.34. The federal government does not have the

power to issue a direct order to the government of a

state thereby “conscript[ting] state governments as its

agents” and may not dictate “what a state legislature

may and may not do.” Murphy v. Nat’l Collegiate

Athletic Ass’n, 138 S. Ct. 1461, 1476, 1477, 1478 (2018).

This is exactly what the Third Circuit has done in DRN

by commandeering Pennsylvania’s legislative and

administrative processes.

In usurping Pennsylvania law, the Third Circuit is,

in effect, forcing the Commonwealth to legislate its

administrative scheme to conform to the structure

preferred by the Third Circuit. If the Commonwealth

wants its preferred scheme for review of Department

actions and its definition of finality to be respected, the

34

Commonwealth will be required to dissolve the Board

and move its functions back within the Department.

This is unconstitutional. Further, such a change would

be nothing but a shuffling of furniture down the hall.

Functionally, there would be absolutely no change in

Pennsylvania’s administrative process; the only change

would be the roof under which that process occurs.

“While Congress has substantial powers to govern

the Nation directly, including in areas of intimate

concern to the States, the Constitution has never been

understood to confer upon Congress the ability to

require the States to govern according to Congress’

instructions.” New York v. United States, 505 U.S. 144,

162 (1992).

III.

THE QUESTIONS PRESENTED

EXCEPTIONALLY IMPORTANT

HAVE WIDE-RANGING IMPACT

ARE

AND

If left intact, federal courts bound by the First and

Third Circuits will be forced to apply conflicting and

amorphous standards to determine whether individual

state’s administrative review processes are preserved

or preempted by Section 717r(d)(1). The unclear timing

for invoking Section 717r(d)(1) creates enormous

uncertainty for the regulated community, aggrieved

parties, and state agencies implementing their water

quality certification programs. Therefore, it is critical

that this Court create a unified standard that not only

protects the due process rights of aggrieved parties, but

also respects the well-developed and long-relied upon

regulatory schemes of the states who are responsible

for issuing the water quality certifications.

35

This Court should grant certiorari to resolve the

conflicts to which the decision below contributes, and

return the Natural Gas Act to its intended scope.

CONCLUSION

For the foregoing reasons, this Court should grant

the petition for certiorari.

Respectfully submitted,

AARON STEMPLEWICZ

Counsel of Record

DELAWARE RIVERKEEPER

NETWORK

925 Canal Street

Suite 3701

Bristol, PA 19007

(215) 369-1188

Aaron@delawareriver

keeper.org

Counsel for Petitioners

Delaware Riverkeeper

Network and

The Delaware Riverkeeper

January 9, 2019

MARK L. FREED

CURTIN & HEEFNER

2005 South Easton Road

Suite 100

Doylestown, PA 18901

(267) 898-0570

Counsel for Petitioner

Lancaster Against

Pipelines