Petition for Writ of Certiorari — Delaware Riverkeeper Network, et al., Petitioners v. Secretary, Pennsylvania Department of Environmental Protection, et al.
Supreme Court briefJan 9, 2019
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APPENDIX
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APPENDIX
TABLE OF CONTENTS
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
App. 1
APPENDIX A
PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 16-2211, 16-2212, 16-2218, 16-2400
[Filed September 4, 2018]
__________________________________________
DELAWARE RIVERKEEPER
)
NETWORK; DELAWARE RIVERKEEPER )
MAYA VAN ROSSUM,
)
Petitioners No. 16-2211
)
)
LANCASTER AGAINST PIPELINES,
)
Petitioner No. 16-2212
)
)
GERALDINE NESBITT,
)
Petitioner No. 16-2218
)
)
SIERRA CLUB,
)
Petitioner No. 16-2400
)
)
v.
)
)
SECRETARY PENNSYLVANIA
)
DEPARTMENT OF ENVIRONMENTAL
)
PROTECTION; PENNSYLVANIA
)
DEPARTMENT OF ENVIRONMENTAL
)
PROTECTION,
)
Respondents
)
)
App. 2
Transcontinental Gas Pipe Line
)
Company, LLC,
)
Intervenor Respondent
)
_________________________________________ )
On Petition for Review of an Order
of the Pennsylvania Department of
Environmental Protection
(FERC No. CP-15-138-000)
Argued November 7, 2017
Before: JORDAN, HARDIMAN, and SCIRICA,
Circuit Judges
(Filed: September 4, 2018)
Aaron J. Stemplewicz [Argued]
Delaware Riverkeeper Network
925 Canal Street, Suite 3701
Bristol, PA 19007
Attorney for Petitioners Delaware Riverkeeper
Network and Delaware Riverkeeper Maya Van
Rossum
Mark L. Freed [Argued]
Jordan B. Yeager
Curtin & Heefner
2005 South Easton Road, Suite 100
Doylestown, PA 18901
Attorneys for Petitioners Lancaster
Pipelines and Geraldine Nesbitt
Against
App. 3
Diana A. Csank
Zachary M. Fabish
Sierra Club Environmental Law Program
50 F Street NW, 8th Floor
Washington, DC 20001
Attorneys for Petitioner Sierra Club
Alexandra C. Chiaruttini
Margaret O. Murphy
Pennsylvania Department of Environmental Protection
400 Market Street, P.O. Box 8469
Harrisburg, PA 17105
Joseph S. Cigan, III [Argued]
Pennsylvania Department of Environmental Protection
2 Public Square
Wilkes-Barre, PA 18701
Curtis C. Sullivan
Pennsylvania Department of Environmental Protection
909 Elmerton Avenue, 3rd Floor
Harrisburg, PA 17110
Jesse C. Walker
Pennsylvania Office of Attorney General
Department of Environmental Resources
P.O. Box 8464
Harrisburg, PA 17105
Attorneys for Respondents
Andrew T. Bockis
Saul Ewing Arnstein & Lehr
2 North Second Street
Penn National Insurance Plaza, 7th Floor
Harrisburg, PA 17101
App. 4
Pamela S. Goodwin
Saul Ewing Arnstein & Lehr
650 College Road East, Suite 4000
Princeton, NJ 08540
Patrick F. Nugent
John F. Stoviak [Argued]
Saul Ewing Artnstein & Lehr
1500 Market Street
Centre Square West, 38th Floor
Philadelphia, PA 19102
Elizabeth U. Witmer
Saul Ewing Arnstein & Lehr
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087
Attorneys for Intervenor Respondent
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
These consolidated petitions for review concern the
Atlantic Sunrise Project, an expansion of the naturalgas distribution network owned by Intervenor
Transcontinental Gas Pipe Line Company (Transco). At
issue is a decision of the Pennsylvania Department of
Environmental Protection (PADEP or the Department)
granting Atlantic Sunrise a Water Quality Certification
under Section 401 of the Clean Water Act, 33 U.S.C.
§ 1341(a)(1).
In addition to their challenge to the merits of
PADEP’s decision to grant the Water Quality
Certification, Petitioners raise an important
App. 5
jurisdictional question we left open in Delaware
Riverkeeper Network v. Secretary of Pennsylvania
Department of Environmental Protection (Riverkeeper
II), 870 F.3d 171, 178 (3d Cir. 2017): whether our
exclusive jurisdiction under the judicial review
provisions of the Natural Gas Act, 15 U.S.C. § 717r(d),
requires finality and how such a requirement would
interact with Pennsylvania’s administrative scheme.
For the reasons that follow, we hold that we have
jurisdiction over the petitions and that Petitioners’
challenges fail on the merits.
I
A
We begin with a brief overview of the regulatory
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 (FERC). 15 U.S.C. § 717f(c)(1)(A). And
since many other federal laws and regulations apply to
pipeline projects, FERC often requires a showing of
compliance with those other mandates as part of its
permitting process. See id. § 717f(e) (authorizing FERC
to grant Certificates subject to “reasonable terms and
conditions”). FERC did so here, preventing Transco
from starting construction on Atlantic Sunrise until it
demonstrates “that it has received all applicable
authorizations required under federal law.”
Transcontinental Gas Pipe Line Co, LLC (Transco), 158
F.E.R.C. ¶ 61125, at App. C ¶ 10 (2017).
One such authorization is a discharge permit under
Section 404 of the Clean Water Act. 33 U.S.C.
App. 6
§ 1344(a). Because obtaining a Section 404 permit is a
federal requirement and the construction and operation
of Atlantic Sunrise “may result in a[] discharge into . . .
navigable waters,” Transco must also comply with
Section 401 of the Clean Water Act. Id. § 1341(a)(1).
Section 401 requires permit applicants 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. Id. Because
of these statutory requirements, Transco had to obtain
a Water Quality Certification from PADEP before
FERC would approve the pipeline project.
B
In an attempt to satisfy the obligations just
described, in the spring of 2015 Transco applied both to
FERC for a Certificate of Public Convenience and
Necessity and to PADEP for a Water Quality
Certification. Shortly thereafter, PADEP published
notice in the Pennsylvania Bulletin (Pennsylvania’s
answer to the Federal Register) of its intent to grant
Transco a Water Quality Certification. After a public
comment period, the Department certified in April
2016 that Atlantic Sunrise would comply with
Pennsylvania’s water-quality standards if it satisfied
certain conditions. Three of those conditions are
relevant here, requiring Transco to obtain the following
from PADEP:
1. a permit under the National Pollutant
Discharge Elimination System, 25 PA. CODE
§§ 92a.1–.104, covering the discharge of
water during hydrostatic pipeline testing;
App. 7
2. a permit under Chapter 102 of PADEP’s own
regulations, 25 PA. CODE §§ 102.1–.51,
covering erosion and sediment disturbance
associated with pipeline construction; and
3. a permit under Chapter 105 of the
Department’s regulations, 25 PA. CODE
§§ 105.1–.449, covering obstructions of and
encroachments on Pennsylvania waters.
In response to PADEP’s notice, Petitioners
immediately filed two parallel challenges to the
approved Water Quality Certification. First, they
sought relief directly from this Court under the
exclusive review provision of the Natural Gas Act, 15
U.S.C. § 717r(d)(1). Second, three of the petitioners also
appealed PADEP’s decision to the Pennsylvania
Environmental Hearing Board (EHB or the Board).1
The Board has stayed its proceedings pending our
jurisdictional ruling, so we turn to that issue now.
II
Under the Natural Gas Act, the courts of appeals
have “original and exclusive jurisdiction over any civil
action for the review” of a state administrative agency’s
“action” taken “pursuant to Federal law to issue . . .
any . . . concurrence” that federal law requires for the
construction of a natural-gas transportation facility. 15
U.S.C. § 717r(d)(1) (cross-referencing 15 U.S.C. § 717f).
We have previously held that when PADEP issues a
1
See Lancaster Against Pipelines v. Commonwealth, No. 2016-075L (Pa. Envtl. Hrg. Bd.); Nesbitt v. Commonwealth, No. 2016-076-L
(Pa. Envtl. Hrg. Bd.); Sierra Club v. Commonwealth, No. 2016-078L (Pa. Envtl. Hrg. Bd.).
App. 8
Water Quality Certification, it does so “pursuant to
federal law,” Del. Riverkeeper Network v. Sec’y Pa.
Dept. of Envtl. Prot. (Riverkeeper I), 833 F.3d 360, 370–
72 (3d Cir. 2016), and the parties do not dispute that
federal law requires the Department to concur before
construction on Atlantic Sunrise can move forward.
Nevertheless, Petitioners contend that we lack
jurisdiction to review their claims. Relying on the First
Circuit’s decision in Berkshire Environmental Action
Team, Inc. v. Tennessee Gas Pipeline Co., LLC, 851
F.3d 105 (1st Cir. 2017), they argue (1) that the
Natural Gas Act permits this Court to hear suits
challenging only a state agency’s final action, and
(2) that PADEP’s Water Quality Certification is nonfinal until the EHB rules on Petitioners’ administrative
appeal. We address both issues in turn.
A
Like the petitions here, Berkshire Environmental
involved the Natural Gas Act, the Clean Water Act,
and a state’s administrative procedures. In that case,
FERC granted a pipeline company a Certificate of
Public Convenience and Necessity subject to essentially
the same condition imposed here—the company would
have to demonstrate it had received all of its federal
permits in order to build its pipeline. Berkshire
Environmental, 851 F.3d at 107. The company
subsequently applied for and received a Water Quality
Certification from the Massachusetts Department of
Environmental Protection (MassDEP) after a noticeand-comment procedure. Id. at 107–08. Under
Massachusetts law, aggrieved parties then had 21 days
to “appeal” that initial decision by demanding a
hearing before MassDEP. Id. at 108, 112–13.
App. 9
Like Transco here, the pipeline company argued
that MassDEP had no authority to hear such an appeal
in light of the First Circuit’s original and exclusive
jurisdiction under the Natural Gas Act. Id. at 108. And
like Petitioners here, the challengers in Berkshire
Environmental asked for a declaration that the Water
Quality Certification would become final and
reviewable by the Court of Appeals only at the
conclusion of their state administrative appeals. Id.
The First Circuit agreed with the challengers on the
jurisdictional question, holding that the Natural Gas
Act permits review of only an agency’s final decisions.
Id. at 111.
Our sister court’s reasoning is straightforward and
persuasive: Although “[i]n a literal sense, state
agencies repeatedly take ‘action’ in connection with
applications for water quality certifications,” Congress
did not intend for us to “exercise immediate review over
[the many] . . . preliminary . . . 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. To be sure, the Natural Gas Act’s reference to
state “action” does not expressly restrict our review to
an agency’s ultimate decisions, but there is a “wellsettled ‘strong presumption that judicial review will be
available only when agency action becomes final.’ To
say that silence on the subject implies no requirement
of finality would be to recognize this ‘strong
presumption’ only when it is of little benefit.” Id. at 109
(quoting Bell v. New Jersey, 461 U.S. 773, 778 (1983))
(citations and alterations omitted). We therefore join
the First Circuit in holding that the Natural Gas Act
provides jurisdiction to review only “final agency action
App. 10
of a type that is customarily subject to judicial review.”
Id. at 111.
In resisting that conclusion, PADEP and Transco
rely almost entirely on Tennessee Gas Pipeline Co. LLC
v. Delaware Riverkeeper Network, 921 F. Supp. 2d 381
(M.D. Pa. 2013), which held that the Natural Gas Act
gives this Court “an unqualified right of review” over
even non-final Water Quality Certifications. Id. at 391.
We reject that proposition. Tennessee Gas failed to
acknowledge our longstanding presumption that
Congress intends judicial review over only final
administrative action. Instead, it framed the issue as
whether to graft onto the Natural Gas Act a finality
requirement that the district court regarded as
“originating in state law.” Id. To be sure, deciding on a
PADEP decision’s finality requires reference to the
Pennsylvania procedures that produced it. But it
remains the case that the finality requirement itself,
along with the presumption that Congress intended us
to apply it, are creatures of federal, not state, law.
We are likewise unpersuaded by Tennessee Gas’s
analysis of the Second Circuit’s decisions in Islander
East Pipeline Co., LLC v. Connecticut Department of
Environmental Protection, 482 F.3d 79 (2d Cir. 2006),
and Islander East Pipeline Co., LLC v. McCarthy, 525
F.3d 141 (2d Cir. 2008). In both Islander cases, the
Second Circuit confronted a situation much like this
one and proceeded without analysis, “as if there were
no hurdles in appealing directly from the
determination of a state administrative body.”
Tennessee Gas, 921 F. Supp. 2d at 393. Implicit in that
course of action, the district court concluded, was a
“determination that it is not necessary for a state
App. 11
administrative quasi-judicial body to first review the
. . . issuance . . . of permits by a state administrative
agency before judicial review . . . may be sought.” Id.
Tennessee Gas incorrectly treated the Islander cases, in
which “jurisdiction [was] . . . assumed by the parties,
and assumed without discussion by the court,” as
authority on the question presented here. Goldman v.
Citigroup Glob. Mkts. Inc., 834 F.3d 242, 251 (3d Cir.
2016). Such “drive-by jurisdictional ruling[s]” would
have carried no precedential weight even had they been
decided by this Court. Id.
B
We turn next to whether the Department’s decision
is a conclusive agency action, such that a “civil action
for [its] review” is committed to our exclusive
jurisdiction under the Natural Gas Act. This is not the
first time we have considered the finality of a PADEP
Water Quality Certification issued for a federallyregulated pipeline. In Riverkeeper II, we held that such
an approval was final and reviewable because the time
to appeal to the EHB had already passed. 870 F.3d at
177. Noting the pendency of the petitions now before
us—in which most of the Petitioners had already taken
parallel protective appeals to the EHB—Riverkeeper II
expressly declined to consider whether the availability
of further state administrative review would render the
Department’s decision non-final. Id. at 178. We answer
that question now.
The standard for whether agency action is final is a
familiar one: “Final agency action ‘must mark the
consummation of the agency’s decisionmaking process,’
‘must not be of a merely tentative or interlocutory
nature,’ and ‘must be one by which rights or obligations
App. 12
have been determined, or from which legal
consequences will flow.’” Id. at 176 (quoting Bennett v.
Spear, 520 U.S. 154, 177–78 (1997)) (internal quotation
marks omitted); accord Berkshire Environmental, 851
F.3d at 111.2 Although the decisionmaking process we
are reviewing is defined by Pennsylvania law, we
nevertheless apply a federal finality standard to
determine whether Congress has made the results of
that process reviewable under the Natural Gas Act.
We begin by surveying Pennsylvania’s procedures
for obtaining and appealing a Water Quality
Certification. First, the applicant submits a request to
PADEP. PENNSYLVANIA DEPT. OF ENVTL. PROT. BUREAU
OF WATER QUALITY PROTECTION, NO. 362-2000-001,
P ERMITTING POLICY AND P ROCEDURE M ANUAL
[hereinafter PERMITTING MANUAL] § 400 at 6. The
Department places a notice in the Pennsylvania
Bulletin, beginning a 30-day comment period. Id.
PADEP then makes its decision, and “[t]he issuance or
denial of [the] Water Quality Certification[] . . .is
published in the Pennsylvania Bulletin as a final action
of the Department.” Id. Aggrieved parties have 30 days
from the date of publication to file an appeal to the
EHB. 25 PA. CODE § 1021.52(a)(1), 2(i).
2
We recognize that many (if not most) decisions addressing
administrative finality arise in the context of the Administrative
Procedure Act, see 5 U.S.C. § 704, rather than agency-specific
review provisions like the one we consider here. Nevertheless, we
think that the case law evaluating finality under the APA is
instructive, and see no reason why finality under the Natural Gas
Act should be evaluated any differently. We will therefore follow
Riverkeeper II’s approach of measuring finality in this context
against “the traditional hallmarks of final agency action.” 870 F.3d
at 178.
App. 13
The EHB is wholly separate from PADEP. The
Board is an “independent quasi-judicial agency,” 35 PA.
STAT. ANN. § 7513(a), and its members—full-time
administrative law judges—are appointed by the
Governor of Pennsylvania without any involvement by
either PADEP or the state’s Secretary of
Environmental Protection, id. § 7513(b). Final orders of
the EHB may be appealed to the Commonwealth Court.
42 PA. CONS. STAT. § 763(a)(1).
Two features of the Board’s review deserve special
mention. First, an appeal to the EHB does not prevent
PADEP’s decision from taking immediate legal effect.
The statute creating the Board expressly provides that
“[n]o appeal shall act as an automatic supersedeas,” 35
PA. STAT. ANN. § 7514(d)(1), and the EHB itself regards
it as “axiomatic that the mere pendency of litigation
before the Board . . . has no effect on the validity or
viability of the Department action being appealed . . . .
An appeal to the Board does not operate as a stay,”
M&M Stone Co. v. Commw. of Pa., Dept. of Envtl. Prot.,
EHB Docket No. 2007-098-L, 2009 WL 3159149, at *3
(Pa. Envtl. Hrg. Bd. Sept. 7, 2009) (citations omitted).
Second, the EHB’s review of PADEP decisions is
conducted largely de novo, with parties entitled to
introduce new evidence and otherwise alter the case
they made to the Department. While Pennsylvania law
refers to proceedings before the EHB as an “appeal,”
the Commonwealth Court has explained that the Board
is not an “appellate” tribunal in the ordinary sense of
that term. The Board does not have “a limited scope of
review attempting to determine if [PADEP]’s action can
be supported by the evidence received . . . [by PADEP].
Rather, the [Board’s] duty is to determine if [PADEP]’s
action can be sustained or supported by the evidence
App. 14
taken by the [Board].” Leatherwood, Inc. v. Commw.,
Dept. of Envtl. Prot., 819 A.2d 604, 611 (Pa. Commw.
Ct. 2003) (emphasis added) (citation omitted).
Once again relying heavily on Berkshire
Environmental, Petitioners claim we may not review
PADEP’s issuance of a Water Quality Certification
until the Board adjudicates their appeal. After holding
that its jurisdiction under the Natural Gas Act covered
only final action, the First Circuit concluded that the
Massachusetts Water Quality Certification then under
its review was non-final so long as the petitioners could
still appeal within MassDEP. Citing similarities
between the Massachusetts and Pennsylvania
procedures, Petitioners ask us to reach the same
conclusion here. We disagree, primarily because there
are important distinctions between the Massachusetts
and Pennsylvania schemes.
Two aspects of Pennsylvania’s system for issuing
Water Quality Certifications distinguish PADEP’s
decision from the non-final one in Berkshire
Environmental. First, the Department’s decision here
was immediately effective, notwithstanding Petitioners’
appeals to the EHB. The Department’s decision was
neither “tentative [n]or interlocutory” and was one
“from which legal consequences . . . flow[ed].”
Riverkeeper II, 870 F.3d at 176 (quoting Bennett, 520
U.S. at 177–78) (internal quotation marks omitted).
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. See 310 MASS.
CODE REGS. 9.09(1)(e); see also Berkshire Envtl., 851
F.3d at 108 (noting that the Water Quality
App. 15
Certification expressly forbade any work under its
auspices until “the expiration of the Appeal Period . . .
and any appeal proceedings”). 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.
Second, unlike in Massachusetts, Pennsylvania law
does not “make[] clear that [Transco]’s application
seeking a . . . water quality certification initiated a
single, unitary proceeding” taking place within one
agency and yielding one final decision. Berkshire
Envtl., 851 F.3d at 112. Quite the opposite. The
Department and the Board are entirely independent
agencies. Each conducts a separate proceeding, under
separate rules, overseen by separately appointed
officers. Compare 25 PA. CODE. Part I (Department of
Environmental Protection), with 25 PA. CODE. Part IX
(Environmental Hearing Board). Both in formal terms,
see PERMITTING MANUAL, supra, § 400 at 6 (noting that
publication in the Pennsylvania Bulletin marks a “final
action of the Department”), and in the immediate
practical effect discussed above, PADEP’s issuance of
a Water Quality Certification is that agency’s final
action, leaving nothing for the Department to do other
than await the conclusion of any proceedings before the
Board.3
3
Petitioners emphasize another parallel between EHB review in
Pennsylvania and an adjudicatory hearing in Massachusetts: both
conduct de novo review without deference to the appealed decision.
App. 16
Whether state law permits further review by the
same agency that makes the initial decision or provides
for an appeal to a structurally-separate body is
probative of whether that decision is final. Finality, at
bottom, is “concerned with whether the initial
decisionmaker has arrived at a definitive position on
the issue,” and PADEP has said its piece regardless of
whether Pennsylvania law gives a different agency the
last word. Williamson Cty. Reg’l Planning Comm’n v.
Hamilton Bank of Johnson City, 473 U.S. 172, 193
(1985) (emphasis added). In that respect, finality is
“conceptually distinct” from the related issue of
exhaustion of administrative remedies. Id. at 192–93.
Here, Petitioners confine themselves to challenging the
finality of PADEP’s decision, and do not argue that we
lack jurisdiction because of a failure to exhaust an
appeal to the EHB.
Petitioners do not rest exclusively on the
comparison between this case and Berkshire
Environmental. Nevertheless, we find their other
arguments no more persuasive.
And to be sure, the First Circuit relied in part on the fact that “the
adjudicatory hearing [was] a review of [the pipeline company]’s
application, rather than a review of a prior agency decision.”
Berkshire Envtl., 851 F.3d at 112. But the court in Berkshire
Environmental did not rely on the fact of de novo review for its own
sake in finding the agency’s initial decision non-final. Rather, it
concluded that the decision was non-final because several features
of Massachusetts’s administrative scheme—de novo review among
them—combined to produce a “review” process that “continue[d]
more or less as though no decision ha[d] been rendered at all.” See
id. The same cannot be said of review by the EHB in Pennsylvania,
which takes place after a decision that has immediate legal effect.
App. 17
Petitioners are incorrect that the Department’s
decision is non-final for purposes of this Court’s review
because a Pennsylvania statute provides that “no
action of [PADEP] shall be final as to [a] person until
the person has had the opportunity to appeal the action
to the [EHB]” or the time to appeal has expired. 35 Pa.
Stat. Ann. § 7514(c). 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 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 PADEP has taken final action.
Nor does due process require that Petitioners have
an opportunity to present evidence at a hearing before
the EHB. “There are instances in which due process
requires that an agency afford an adversarial mode of
procedure and an evidentiary hearing,” but this “is not
such an instance.” See Nat’l Labor Relations Bd. v.
ARA Servs., Inc., 717 F.2d 57, 67 (3d Cir. 1983). The
essence of due process is notice and an opportunity to
be heard, and with respect to decisions like the one
under review here, the public comment period provided
Petitioners “with meaningful hearing rights sufficient
under the circumstances to protect [their] interests.”
See Bank of N. Shore v. Fed. Deposit Ins. Corp., 743
F.2d 1178, 1184 (7th Cir. 1984). Due process does not
entitle Petitioners to a de novo evidentiary hearing; the
opportunity to comment and to petition this Court for
review is enough.
App. 18
Notwithstanding the availability of an appeal to the
EHB, PADEP’s issuance of a Water Quality
Certification was final in precisely the most important
ways that the permit in Berkshire Environmental was
not. The Department’s action presents all the
“traditional hallmarks of final agency action,”
Riverkeeper II, 870 F.3d at 178, and we have exclusive
jurisdiction to hear any “civil action for the review” of
such a decision. We now turn to Petitioners’ challenges
to the merits of the Department’s decision.
III
Petitioners make four separate arguments on the
substance of their claims.4 First, they claim PADEP
failed to provide the public notice the Clean Water Act
requires prior to issuing a Water Quality Certification.
Second, they contend the Department acted arbitrarily
and capriciously by issuing a Water Quality
Certification that was immediately effective despite
being conditioned on Transco obtaining additional
permits in the future. Third, pointing out that
PADEP’s approval was necessary for Transco to begin
eminent domain proceedings under the Natural Gas
Act, Petitioners argue that the Department’s decision
deprived them of due process and violated the Fifth
Amendment’s Takings Clause. Finally, Petitioners
assert that the Department’s action violated its
obligation to safeguard the Commonwealth’s natural
resources under Article I, Section 27 of the
Pennsylvania Constitution. We address these
arguments seriatim.
4
Not every petitioner joins in every argument. For the sake of
simplicity we refer generically to “Petitioners.”
App. 19
A
The Clean Water Act obliges state agencies to
comply with a number of procedural requirements
before issuing a Water Quality Certification. As
relevant here, Section 401 requires PADEP to
“establish procedures for public notice in the case of all
applications for certification.” 33 U.S.C. § 1341(a)(1).
No party disputes that the Department has a
longstanding written policy, published in its Permitting
Manual, that when it “receives a request for Water
Quality Certification, a notice is published in the
Pennsylvania Bulletin for a 30-day comment period.”
PERMITTING MANUAL, supra, § 400 at 6. And no party
disputes that the Department followed that policy here.
Nevertheless, Petitioners claim it was insufficient to
satisfy Section 401. We disagree.
First, Petitioners cite several cases in which
“[c]ourts have found that Section 401(a)(1)’s notice
requirements are met where the state codifies the
notice requirements by statute or regulation.”
Riverkeeper Br. 25–26. But none of those decisions—
and nothing in the text of the Clean Water Act—
requires a State to establish its notice procedures by
way of regulation. The fact that formal rulemaking is
sufficient to satisfy the requirement of established
notice procedures does not mean it is necessary.
Second, Petitioners claim this Court has already
“held” that PADEP has “failed to ‘establish’ procedures
for public notice” under Section 401. Riverkeeper Br.
26–27. Petitioners’ only support for that claim is a
single clause in our decision in Riverkeeper I: “PADEP
has not published any procedures for issuing Water
Quality Certifications.” 833 F.3d at 385. Reading that
App. 20
clause in context, however, makes clear that it does not
refer to PADEP’s procedures for providing public notice
of Section 401 applications. Indeed, PADEP’s notice
procedures were not at issue in that case. Rather, we
considered PADEP’s procedures for processing such
applications—what information the agency would
gather and evaluate before issuing a Water Quality
Certification. Id. at 385–86. Contrary to Petitioners’
suggestion, we have never held anything with respect
to PADEP’s notice procedures.
Third, Petitioners suggest that “PADEP itself has
implicitly conceded” its failure to establish adequate
notice procedures by publishing a draft of new
procedures for considering Section 401 Certifications,
including notice procedures. Riverkeeper Br. 27–28. We
are unpersuaded. The Department has not conceded
that its existing notice procedures are legally
inadequate by moving to promulgate a single set of
rules governing the entire Water Quality Certification
process.
Finally, Petitioners contend that Section 401
required PADEP to immediately give full notice not
only of Transco’s application for a Water Quality
Certification, but also of the three substantive permits
on which the Department proposed to condition its
approval. That argument also fails. Notice need only be
adequate to allow interested parties to participate
meaningfully in the process that is actually pending,
and PADEP’s process for granting Water Quality
Certifications does not involve immediate consideration
of any substantive permits. This Court approved that
arrangement just two years ago, holding that when the
Department conditions a Certification on the later
App. 21
acquisition of other permits, the agency may issue the
Certification without engaging in the substantive
review that will eventually be required to grant the
permits. Riverkeeper I, 833 F.3d at 387–88. Since
PADEP is not required to conduct that review at this
stage, it would make little sense to require it to provide
notice of the same.
B
Petitioners also assert that the Department’s
decision to issue a Water Quality Certification now,
conditioned on Transco obtaining substantive permits
later, was arbitrary, capricious, or otherwise not in
accordance with law. Petitioners make two versions of
that argument. First, they claim PADEP’s decision was
arbitrary because it certified Atlantic Sunrise’s water
quality compliance based on a pledge that Transco
would demonstrate substantive compliance in a future
permit application rather than in the application for
the Water Quality Certification itself. Without that
present demonstration of compliance, Petitioners
argue, PADEP’s decision that Atlantic Sunrise would
comply with Pennsylvania water quality standards
could not have been based on anything but guesswork.
Second, Petitioners say the Department failed to follow
its own procedures, which they claim require the
agency to consider applications for Water Quality
Certifications simultaneously with any applicable
substantive permits.
Both of those arguments—which at bottom focus on
the timing rather than the substance of the
Department’s decision—are foreclosed by our decision
in Riverkeeper I. In that case, we held that PADEP’s
preferred procedure for considering Certifications along
App. 22
with other permits was not arbitrary or capricious
because—since no construction can begin before the
Department grants the substantive permits, and all
interested parties will have a full opportunity to weigh
in when PADEP considers applications for those
permits—the petitioners could not show they had been
harmed by the Department’s sequencing choice.
Riverkeeper I, 833 F.3d at 386–87. The same analysis
applies with equal force here. Petitioners attempt to
distinguish this case by arguing that they have been
harmed by the Department’s choice not to provide
notice of the substantive permits upon which it
conditioned the Water Quality Certification. But as we
discussed herein, Petitioners will suffer no harm from
PADEP’s decision to provide notice of those permits at
the time it actually considers them.
C
Petitioners next argue that PADEP’s issuance of a
conditional Water Quality Certification violates the
Takings Clause of the Fifth Amendment and the Due
Process Clause of the Fourteenth Amendment. Under
the Natural Gas Act, any natural gas company holding
a Certificate of Public Convenience and Necessity may
acquire a pipeline right-of-way through eminent
domain. 15 U.S.C. § 717f(h). The Certificate of Public
Convenience and Necessity establishes the legal right
to take property; in a condemnation proceeding under
the Natural Gas Act, the “only open issue [is] the
compensation the landowner defendant will receive in
return for the easement.” Columbia Gas Transmission,
LLC v. 1.01 Acres, More or Less in Penn Twp., York
Cty., Pa., Located on Tax ID #440002800150000000
Owned By Brown, 768 F.3d 300, 304 (3d Cir. 2014).
App. 23
Petitioners assert that PADEP violated the Fifth and
Fourteenth Amendments when it issued a conditional
Water Quality Certification—a condition precedent for
initiating eminent domain proceedings under Transco’s
Certificate of Public Convenience and Necessity—
based on a relatively restricted administrative process.
Regardless of its underlying merits, and setting
aside questions about whether the Clean Water Act
could ever provide a vehicle to raise a takings
argument, see Gunpowder Riverkeeper v. FERC, 807
F.3d 267, 274–75 (D.C. Cir. 2015) (concluding that “an
injury arising specifically by reason of eminent domain”
falls outside the zone of interests protected by the
statute), that claim cannot succeed because Petitioners
have presented it in the wrong forum. Their argument
does not challenge PADEP’s judgment that Transco
will comply with Pennsylvania’s water-quality
standards. Nor does it ask this Court to review the
Department’s reasoning, its procedures, or the facts on
which it based its decision. Rather, Petitioners’
eminent-domain argument is in substance a challenge
to FERC’s order granting a Certificate of Public
Convenience and Necessity. And that order may only
be challenged by a request for rehearing before FERC
itself, or by a petition for review by an appropriate
federal circuit court. See 15 U.S.C. § 717r(a)–(b);
Williams Nat. Gas Co. v. City of Okla. City, 890 F.2d
255, 264 (10th Cir. 1989). Petitioners respond, in
essence, that those avenues are inadequate because if
Petitioners took advantage of them, Transco would
resist and Petitioners might lose. That argument
refutes itself.
App. 24
D
Petitioners’ final argument—that PADEP failed to
comply with its obligations under the Pennsylvania
Constitution—also fails. Article I, Section 27 of the
Pennsylvania Constitution establishes a common right
to the Commonwealth’s natural resources and obligates
its government to hold those resources in trust.
Petitioners argue that PADEP failed to live up to that
obligation when it issued a Water Quality Certification
conditioned on Transco later obtaining certain
substantive permits.
Transco responds that a state constitutional claim
is not cognizable in this proceeding, arguing that by
vesting jurisdiction in this Court to review PADEP’s
Certification decision, the Natural Gas Act provides for
only a narrow scope of review that does not permit us
to hear state-law claims. Transco points to § 717r(d)(3)
of the Act, which states that if the reviewing court of
appeals finds that an agency’s action was “inconsistent
with the Federal law governing such permit and would
prevent the construction, expansion or operation of the
facility . . . , the Court shall remand the proceeding to
the agency.” 15 U.S.C. § 717r(d)(3) (emphasis added).
In Transco’s view, the statute’s requirement that we
remand to the agency when certain conditions are met
implies that remand is the only remedy available to us,
and then only under the conditions just quoted.
Therefore, Transco asserts, we may not reach the
merits of Petitioners’ claim under the Pennsylvania
Constitution. We cannot agree.
The provision of the Natural Gas Act that actually
grants us jurisdiction, 15 U.S.C. § 717r(d)(1), is quite
capacious. It empowers us to hear “any civil action”
App. 25
seeking “review” of federal permits required by
interstate pipelines. And ordinarily, when such agency
action is “made reviewable by statute,” 5 U.S.C. § 704,
the Administrative Procedure Act authorizes a broad
scope of review, without limiting courts to considering
only federal law, see id. § 706. Nothing in § 717r(d)(3)
says differently; it simply requires reviewing courts to
apply a particular remedy when certain conditions are
met. It says nothing about other circumstances, and we
will not imply from the statute’s silence that Congress
intended to restrict the language of its text. Congress
does not “hide elephants in mouseholes.” Whitman v.
Am. Trucking Ass’ns. Inc., 531 U.S. 457, 468 (2001).5
Nevertheless, Petitioners’ claim under the
Pennsylvania Constitution cannot succeed on the
merits. Petitioners essentially complain that PADEP
could not have met its obligation to safeguard
Pennsylvania’s natural resources because it granted a
Water Quality Certification before collecting the
environmental impact data that would be required to
issue the substantive permits on which it was
conditioned. That fails for the same reason that we
rejected Petitioners’ argument that PADEP’s decision
to grant a Water Quality Certification conditioned on
obtaining other permits was arbitrary and capricious.
See supra III.B. Because Transco will have to obtain
those substantive permits to begin construction—and
5
The United States Court of Appeals for the Fourth Circuit has
recently reached the same conclusion. Sierra Club v. U.S. Dep’t of
the Interior, — F.3d —, 2018 WL 3717067, at *25 (4th Cir. Aug. 6,
2018) (holding that when an agency’s action would not “prevent the
construction” of a pipeline, § 717r(d)(3) did not apply and “the
APA’s default rule” governed)
App. 26
PADEP will have to consider Article I, Section 27 in
deciding whether to grant or deny them—Petitioners
cannot show that they have been harmed by the
Department’s decision to issue a conditional Water
Quality Certification.
***
For the reasons stated, we will deny the petitions
for review.
App. 27
APPENDIX B
COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD
EHB Docket No. 2015-060-M
[Filed June 2, 2017]
__________________________________________
THE DELAWARE RIVERKEEPER
)
NETWORK AND MAYA K VAN ROSSUM, )
THE DELAWARE RIVERKEEPER
)
)
v.
)
)
COMMONWEALTH OF PENNSYLVANIA, )
DEPARTMENT OF ENVIRONMENTAL
)
PROTECTION and TRANSCONTINENTAL )
GAS PIPE LINE COMPANY, LLC
)
_________________________________________ )
Issued June 2, 2017
OPINION AND ORDER ON
THE TERMINATION OF THE
ABOVE-CAPTIONED APPEAL
By Richard P. Mather, Sr., Judge
Synopsis
The Board agrees to terminate Appellant’s appeal in
the above-captioned matter in light of the Appellant’s
March 24, 2017 letter and following a conference call
with the Parties on May 16, 2017. The Board
nonetheless notes that it did not decide to terminate
App. 28
the appeal for lack of jurisdiction. The Board believes
that it would have jurisdiction over this appeal.
OPINION
The above captioned appeal was filed by the
Delaware Riverkeeper Network and Maya K. Van
Rossum, the Delaware Riverkeeper (“Appellant”) on
May 5, 2015 in response to the Department’s grant of
two 401 Water Quality Certifications – Permits No. EA
40-013 and EA 45-002 – to Transcontinental Gas Pipe
Line Company, LLC (“Permittee”) on April 6, 2015.
On May 21, 2015, the Parties submitted a joint
request for a stay in this appeal, pending the Third
Circuit Court of Appeals’ review of its jurisdiction over
a petition for review filed by the Delaware Riverkeeper
Network. This petition for review concerns the same
Department decision as challenged here, which relates
to Transco’s Leidy Southeast Expansion Project.1 The
Board granted the request for an approximately
two-month stay, at which point the Parties were
required to submit a status report on or before July 28,
2015. As there were no new developments, the Board
continued to issue orders extending the stay and
requiring joint status reports. Status reports were due
1
See Delaware Riverkeeper Network v. Quigley, No. 15-2122 (3d.
Cir., filed May 5, 2015). On May 8, 2015, the Court of Appeals for
the Third Circuit issued an order requiring the parties to address
the Court’s authority over the petition within fourteen days of the
order. The parties in this matter requested that the appeal
pending before the Board be stayed for a reasonable duration so as
to give the Court of Appeals time to consider the submissions in
response to its order.
App. 29
on October 1, 2015, November 6, 2015, February 5,
2016, April 1, 2016, June 3, 2016, and August 1, 2016.
On August 8, 2016, the Court of Appeals for the
Third Circuit issued its opinion in Delaware
Riverkeeper Network v. Quigley, in which it held that
state action taken pursuant to the Clean Water Act in
permitting an interstate natural gas facility pursuant
to the Natural Gas Act “is subject to review exclusively
in the Court of Appeals.” Slip op. at 17-18. Permittee
filed a letter with the Board on August 8, 2016
requesting that the Board dismiss the appeal for lack
of jurisdiction, given the Court of Appeals’ ruling. The
Board issued an order on August 11, 2016 staying the
appeal and ordering the Appellant to file a status
report on or before September 12, 2016 indicating
whether they have an objection to Permittee’s request
to dismiss the appeal.
On September 15, 2016, the Appellant filed a status
report that alerted the Board to the Delaware
Riverkeeper Network’s request for a re-examination of
a number of issues ruled upon in the Third Circuit’s
decision. If granted, this request, while unrelated to
jurisdictional issues, would delay the Third Circuit’s
issuance of a mandate and could potentially modify the
Third Circuit’s August 8, 2016 Opinion. The Appellant
therefore requested that the Board extend its stay of
this appeal. On October 31, 2016, the Board granted
this request and stayed the matter until the Third
Circuit issued a mandate in Delaware Riverkeeper
Network v. Quigley.
On March 24, 2017, the Appellant submitted a
letter alerting the Board to the Third Circuit’s issuance
of an amended opinion on the same date. While the
App. 30
Third Circuit Court of Appeal’s adopted several
changes requested by the Delaware Riverkeeper, none
of those changes impacted the Court’s holding on
jurisdiction. In light of this, the Appellant had no
objection to the termination of its appeal before the
Board. However, in a footnote, Appellant also drew the
Board’s attention to a recent ruling out of the First
Circuit in which the Court dismissed a petition for
review under Section 19(d)(1) of the Natural Gas Act,
15 U.S.C. § 717r(d)(1). The Court determined that it
lacked subject matter jurisdiction over a Section 401
Water Quality Certificate because aggrieved parties
had the right to appeal the Certificate to the state
department of environmental protection before it could
be appropriately reviewed by the First Circuit of
Appeals.2
Prior to the Board addressing Appellant’s March 24,
2017 letter, Judge Labuskes issued an Opinion and
Order in Lancaster Against Pipelines, Geraldine Nesbitt
and Sierra Club v. DEP, EHB Docket No. 2016-075-L
(Opinion and Order, May 10, 2017). In this Opinion,
Judge Labuskes determined that the Board has
jurisdiction over appeals of Water Quality Certifications
pursuant to Section 401 of the Clean Water Act. In light
of this related matter, the Board scheduled a conference
call with all parties in the instant appeal on May 16,
2017 to confirm that Appellant had no objection to the
termination of its appeal before the Board. During the
call, the Appellant confirmed that it did not object to the
termination its appeal, and neither the Department nor
Permittee were opposed. Therefore, the Board will close
2
See Berkshire Environmental Action Team, Inc. v. Tennessee Gas
Pipeline Company, LLC, 851 F.3d 105 (1st Cir. 2017).
App. 31
and discontinue this docketed appeal. The Board
nonetheless feels that a brief discussion of its
jurisdiction over such appeals is useful because the issue
may arise in later appeals and was correctly decided by
Judge Labuskes in the pending related appeal.
Discussion
In Lancaster Against Pipelines, Geraldine Nesbitt
and Sierra Club v. DEP, Permittee Transcontinental
Gas Pipeline Company, LLC (“Permittee” or “Transco”)
requested that the Board dismiss the appeal regarding
the Department’s issuance of a Section 401 Water
Quality Certificate following the ruling by the Third
Circuit in Delaware Riverkeeper Network v. Secretary,
Pennsylvania Department of Environmental Protection
833 F.3d 360 (3d Cir. 2016). Transco argued that the
Board could not review the Department’s issuance of
the 401 Certification because the Third Circuit has
exclusive jurisdiction over that section. The
Department notified the Board that it would “abide by”
the Third Circuit’s ruling. The Appellants, however,
have asked the Third Circuit to dismiss their petitions
for review for lack of jurisdiction because the Board has
not yet acted on the appeals before it, thereby
rendering the petitions before the Third Circuit not yet
ripe for review. Appellants further argued that the
Board does have jurisdiction and should issue a stay in
Lancaster Against Pipelines v. DEP until the Third
Circuit rules on whether it has jurisdiction in the
pending parallel proceedings. The Board agreed with
the Appellants and determined that it had jurisdiction
under the Natural Gas Act, 15 U.S.C. §§ 717-717z.
Although the Natural Gas Act makes the regulation
of natural gas pipelines a federal function, it leaves
App. 32
open a limited role for states that have primacy to
implement the Clean Water Act. Lancaster Against
Pipelines, Geraldine Nesbitt and Sierra Club v. DEP,
EHB Docket No. 2016-075-L, slip op. at 3 (Opinion and
Order, May 10, 2017). Pennsylvania is such a state. In
these instances, the state retains the right to
determine whether the project complies with federal
and state water quality standards. Id. If the project is
in compliance, then the state will issue a 401
Certification. Id.
The jurisdictional issue involved here arises from
Section 19(d)(1) of the Natural Gas Act:
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 Federal agency (other
than the Commission) 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 (16 U.S.C. 1451 et seq.).
15 U.S.C. § 717r(d)(1). As Judge Labuskes stated, “the
Third Circuit’s opinion in the Delaware Riverkeeper
case is not particularly helpful” in resolving the
jurisdictional issue of concern to the Board. The
jurisdictional issue before the Third Circuit was both
broader and more general: whether the Department’s
issuance of a 401 Certification was the act of a state
App. 33
administrative agency acting “pursuant to Federal
law.” Delaware Riverkeeper, 833 F.3d at 370. This is
not the jurisdictional issue that is of concern to the
Board. Rather, the Board is faced with whether a final
state action is required before the Court of Appeals
may act upon a petition for review under Section
19(d)(1). If a final state action is required under Section
19(d)(1), then the follow-up question is whether a final
state action has occurred in a given matter.
The question of whether a final “state
administrative agency” action is required under Section
19(d)(1) is a question of federal law that is already
pending before the Third Circuit. Both the First and
Ninth Circuits have ruled that it is required. See
Berkshire Env. Action Team, Inc. v. Tenn. Gas Pipeline,
LLC, 851 F.3d 105 (1st Cir. 2017); Columbia
Riverkeeper v. U.S. Coast Guard, 761 F.3d 1084 (9th
Cir. 2014). The Middle District of Pennsylvania has
ruled that it is not required. Contra Tennessee Gas
Pipeline LLC v. Del. Riverkeeper Network, 921 F. Supp.
381 (M.D. Pa. 2013). The Board particularly finds the
First Circuit Court of Appeals’ position to be highly
persuasive. The First Circuit’s position was that there
was ample reason to continue to have the strong
presumption that judicial review is available only upon
a state agency action becoming final. Berkshire Env.
Action Team, 851 F.3d at 111 (citing Bell v. New Jersey,
461 U.S. 773, 778 (1973)).
Whether a state agency action is final is a question
of state law. 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
App. 34
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.”
Lancaster Against Pipelines, EHB Docket No.
2016-075-L, slip op. at 5 (Opinion and Order, May 10,
2017), citing Fiore v. DER, 655 A.2d 1081, 1086 (Pa.
Cmwlth. 1995); Morcoal v. DER, 459 A.2d 1303, 1307
(Pa. Cmwlth. 1983).
This is very much like the Massachusetts
procedures that the First Circuit found were not final
until the adversely affected party had the opportunity
to go through the state’s hearing process. Berkshire,
851 F.3d at 111-14. Unless the Third Circuit holds that
a final action is not required, or that Pennsylvania’s
may be disregarded, the Board finds that it has
jurisdiction over appeals such as that found in
Lancaster Against Pipelines and the matter here.
Therefore, while we will close and terminate this
appeal because Appellant have no objection, we
maintain that we have jurisdiction over it.3
3
Aside from the statutory construction issue arising under Section
19(d)(1) regarding the need for a final state agency action, I believe
there is a more fundamental concern with Section 19(d)(1) that
arises under the Tenth Amendment of the United States
Constitution. U.S. CONST. amend. X. There is no question that
Congress has the authority to preempt state regulatory authority
regarding interstate pipelines subject to regulation by the Federal
Energy Regulatory Commission under the Natural Gas Act. 15
App. 35
U.S.C. §§ 717-717z. Section 19(d)(1) does not, however, preempt
state regulatory authority, but rather expressly recognizes a limited
state role for a “state administrative agency acting pursuant to
federal law . . .” Section 19(d)(1) does more than simply authorize a
limited state role, however. It commandeers state agency officials
and compels them to violate longstanding state administrative law.
Section 19(d)(1) purports to rewrite state laws by directing state
agency officials to litigate the state agency’s decisions before the
United States Court of Appeals for the circuit in which the facility
is located. It is a fundamental principle of law that Pennsylvania
state agencies are entities established by Pennsylvania state law,
and that they have only the authority given to them by the
Pennsylvania General Assembly. Small v. Horn, 722 A.2d 664, 669
(Pa. 1998). Congress’s attempt to commandeer the Department and
its officials and to compel them to defend their actions in federal
court rewrites longstanding state administrative law. 35 P.S. § 7514.
I believe that this attempt violates the Tenth Amendment and its
anti-commandeering principle. See New York v. United States, 505
U.S. 144 (1992) and Printz v. United States, 521 U.S. 898 (1997).
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. If the Third Circuit Court
of Appeals decides that a final state action is required under Section
19(d)(1) then the clear conflict with longstanding Pennsylvania state
law involving appeals of Department actions to the Environmental
Hearing Board will be addressed. However, the Pennsylvania
General Assembly has also directed that appeals from decisions of
the Pennsylvania Environmental Hearing Board go to the
Pennsylvania Commonwealth Court. 42 Pa. C.S.A. § 763. Therefore,
such a decision from the Third Circuit confirming the necessity of a
final state action could nonetheless still implicate constitutional
issues of commandeering by circumventing state laws directing such
appeals to the Commonwealth Court. See generally Josh Blackman,
Article: State Judicial Sovereignty, 2016 U. Ill. L. Rev. 2033 (2016)
(Discussing the constitutionality of exclusive federal jurisdiction as
it relates both to Article III of the Constitution and the
anti-commandeering principle of the Tenth Amendment).
App. 36
COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD
EHB Docket No. 2015-060-M
[Filed June 2, 2017]
__________________________________________
THE DELAWARE RIVERKEEPER
)
NETWORK AND MAYA K VAN ROSSUM, )
THE DELAWARE RIVERKEEPER
)
)
v.
)
)
COMMONWEALTH OF PENNSYLVANIA, )
DEPARTMENT OF ENVIRONMENTAL
)
PROTECTION and TRANSCONTINENTAL )
GAS PIPE LINE COMPANY, LLC
)
_________________________________________ )
ORDER
AND NOW, this 2nd day of June, 2017, in
consideration of the Permittee’s request to terminate
the appeal, the above-captioned matter will be marked
closed and discontinued in the docket.
ENVIRONMENTAL HEARING BOARD
s/ Richard P. Mather, Sr.
RICHARD P. MATHER, SR.
Judge
DATED: June 2, 2017
c: DEP, General Law Division:
Attention: Maria Tolentino
(via electronic mail)
App. 37
For the Commonwealth of PA, DEP:
Joseph S. Cigan III, Esquire
(via electronic filing system)
For Appellant:
Aaron Stemplewicz, Esquire
(via electronic filing system)
For Permittee:
Pamela S. Goodwin, Esquire
Andrew T. Bockis, Esquire
John F. Stoviak, Esquire
(via electronic filing system)
App. 38
APPENDIX C
COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD
EHB Docket No. 2016-075-L
(Consolidated with 2016-076-L and 2016-078-L)
[Filed May 10, 2017]
_____________________________________________
LANCASTER AGAINST PIPELINES
)
GERALDINE NESBITT AND SIERRA CLUB )
)
v.
)
)
COMMONWEALTH OF PENNSYLVANIA,
)
DEPARTMENT OF ENVIRONMENTAL
)
PROTECTION and TRANSCONTINENTAL
)
GAS PIPE LINE COMPANY, LLC, Permittee )
____________________________________________ )
Issued May 10, 2017
OPINION AND ORDER ON
REQUEST TO DISMISS
By Bernard A. Labuskes, Jr., Judge
Synopsis
The Environmental Hearing Board has jurisdiction
in an appeal from the Department of Environmental
Protection’s issuance of a Water Quality Certification
pursuant to Section 401 of the Clean Water Act.
App. 39
OPINION
On April 5, 2016, the Pennsylvania Department of
Environmental Protection (the “Department”) issued a
Water Quality Certification pursuant to Section 401 of
the Clean Water Act, 33 U.S.C. § 1341(a), to
Transcontinental Gas Pipe Line Company, LLC
(“Transco”). The Department certified among other
things that the construction, operation, and
maintenance of Transco’s Atlantic Sunrise Pipeline
Project complies with the Commonwealth’s water
quality standards, provided that Transco obtained and
complied with some yet-to-be-issued state permits.
Lancaster Against Pipelines, Geraldine Nesbitt, and
the Sierra Club filed these consolidated appeals from
the Department’s issuance of the 401 certification. The
Appellants also filed petitions with the Court of
Appeals for the Third Circuit seeking review of the
same Department action. Lancaster Against Pipelines
v. Quigley, No. 16-2212; Nesbitt v. Quigley, No.
16-2218; and Sierra Club v. Quigley, No. 16-2400. Soon
thereafter, the parties asked for and received a series
of stays in both our appeals and the Third Circuit
cases. The parties told us that they wished to await the
Third Circuit Court of Appeal’s decision in a case said
to involve similar issues, Delaware Riverkeeper
Network v. Secretary, Pennsylvania Department of
Environmental Protection, 833 F.3d 360 (3d Cir. 2016).
On August 8, 2016, Transco by letter informed us
that the Third Circuit had issued its Opinion in the
Delaware Riverkeeper case. Transco requested that we
dismiss the appeal. However, a petition for rehearing
was thereafter filed in the Delaware Riverkeeper case,
so the parties once again agreed to a continuing stay
App. 40
pending the ruling on that petition. The parties asked
us to issue an Order providing that, within fourteen
days of the Third Circuit’s mandate in the Delaware
Riverkeeper case, the parties could file written
responses addressing this Board’s authority to proceed
in this matter. We agreed and issued an appropriate
Order on September 13, 2016.
On March 13, 2017, the parties notified us that the
Third Circuit had issued its mandate in the Delaware
Riverkeeper case. They indicated that they would be
filing their respective jurisdictional statements as
contemplated in our Order, which they have now done.
Transco has renewed its “request” that the Board
dismiss these consolidated appeals for lack of
jurisdiction. It argues that this Board cannot review
the Department’s issuance of the 401 certification
because the Third Circuit has exclusive jurisdiction to
review that action. The Department sent us a short
letter indicating that it was willing to “abide by” the
Third Circuit’s ruling in Delaware Riverkeeper. The
Appellants tell us that they have asked the Third
Circuit to dismiss their own petitions for review for
lack of jurisdiction, arguing that the petitions are not
ripe for review because this Board has not yet acted on
their appeals before us. They tell the Court that,
because the Board has not yet acted on the appeal of
the 401 certification, there is no final state action for
the Court to review. Similarly, the Appellants argue
before us that we do indeed have jurisdiction, and that
at a minimum we should issue another stay until the
Third Circuit rules on its jurisdiction in the parallel
proceedings pending there.
App. 41
Although a challenge to our jurisdiction must
ordinarily take the form of a motion, 25 Pa. Code
§§ 1021.91 and 1021.94, we are willing to view
Transco’s request for dismissal together with the
parties’ jurisdictional statements as the functional
equivalent of a motion. Transco’s request is denied and
the Appellant’s request for a stay is granted because, in
our view, until the Third Circuit holds otherwise, this
Board does have jurisdiction to review the
Department’s action.
Ordinarily there would be no question that we have
jurisdiction to review the Department’s issuance of a
401 certification. See Solebury Twp. v. DEP, 928 A.2d
990 (Pa. 2007). The question arises here, however,
because the certification at issue involves an interstate
natural gas pipeline subject to regulation by the
Federal Energy Regulatory Commission (FERC) under
the Natural Gas Act, 15 U.S.C. §§ 717-717z. The
Natural Gas Act for the most part makes the
regulation of natural gas pipelines a federal function,
but it carves out a limited role for states such as
Pennsylvania that have primacy to implement the
Clean Water Act. The state retains the right to
determine whether the project complies with federal
and state water quality standards. If it does, the state
issues a 401 certification. The jurisdictional issue
arises because Section 19(d)(1) of 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
App. 42
jurisdiction over any civil action for the review of
an order or action of a Federal agency (other
than the Commission) 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 (16 U.S.C. 1451 et seq.).
15 U.S.C. § 717r(d)(1).
We do not believe the Third Circuit’s Opinion in the
Delaware Riverkeeper case is particularly helpful. The
only jurisdictional issue before the Court was whether
the Department’s issuance of a 401 certification was
the act of a state administrative agency acting
“pursuant to Federal law.” Delaware Riverkeeper, 833
F.3d at 391. The Court held that it was, and it
proceeded to address the merits. The Court was not
faced with and did not address whether the state’s
action needed to be final and whether the Department’s
issuance of the certification was final. The precise
question presented in our case is not whether the
Department was acting pursuant to federal law; it is
whether a final action is required before the Court of
Appeals can act upon a petition for review, and
whether a final action has taken place in this case.
There is little point in us opining on the first
question. Whether a final action is required is a
question of federal law that is pending before the Court
in the Appellants’ petitions for review in the
proceedings parallel to this one. The First Circuit Court
of Appeals in what we believe to be a highly persuasive
decision that respects the state’s administrative
App. 43
process recently held that a final agency decision is
required. Berkshire Env. Action Team, Inc. v. Tenn.
Gas Pipeline, LLC, 851 F.3d 105 (1st Cir. 2017). See
also, Columbia Riverkeeper v. U.S. Coast Guard, 761
F.3d 1084 (9th Cir. 2014) (final action required).
Contra, Tennessee Gas Pipeline LLC v. Del. Riverkeeper
Network, 921 F.Supp. 381 (M.D. Pa. 2013) (final agency
action not required). The First Circuit said that there
was ample reason to stick with the strong presumption
that judicial review is only available when an agency
action becomes final. Id., 851 F.3d at 111 (citing Bell v.
New Jersey, 461 U.S. 773, 778 (1973)).
As to the second question, there is no doubt
whatsoever that the Department’s certification of
Transco’s project was not a final action. 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). Pennsylvania courts have long held that a
Departmental action is not final until an adversely
affected party has had an opportunity to appeal the
action to this Board. Fiore v. DER, 655 A.2d 1081, 1086
(Pa. Cmwlth. 1995); Morcoal v. DER, 459 A.2d 1303,
1307 (Pa. Cmwlth. 1983). 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.
Berkshire, 851 F.3d at 111-14. Unless the Third Circuit
holds that no final action is required, or that the one
that is required by Pennsylvania law may simply be
disregarded, the appeal before us may proceed.
App. 44
Accordingly, dismissal would be premature. We,
therefore, issue the Order that follows.
App. 45
COMMONWEALTH OF PENNSYLVANIA
ENVIRONMENTAL HEARING BOARD
EHB Docket No. 2016-075-L
(Consolidated with 2016-076-L and 2016-078-L)
[Filed May 10, 2017]
_____________________________________________
LANCASTER AGAINST PIPELINES
)
GERALDINE NESBITT AND SIERRA CLUB )
)
v.
)
)
COMMONWEALTH OF PENNSYLVANIA,
)
DEPARTMENT OF ENVIRONMENTAL
)
PROTECTION and TRANSCONTINENTAL
)
GAS PIPE LINE COMPANY, LLC, Permittee )
____________________________________________ )
ORDER
AND NOW, this 10th day of May, 2017, upon
consideration of the parties’ responses regarding this
Board’s jurisdiction over the above-captioned appeal
pursuant to the Board’s Order of March 21, 2017, it is
hereby ordered that:
1. This matter is stayed until the Third Circuit
rules upon its jurisdiction over the matters
docketed at Sierra Club v. Secretary,
Pennsylvania Department of Environmental
Protection, et al., No. 16-2400, Nesbitt v.
Secretary, Pennsylvania Department of
Environmental Protection, et al., No. 16-2218,
and Lancaster Against Pipelines v. Secretary,
Pennsylvania Department of Environmental
App. 46
Protection, et al., No. 16-2212 (“the pending
Third Circuit matters”).
2. The parties shall promptly notify the Board
upon the Third Circuit’s decision on jurisdiction
in the pending Third Circuit matters, or file a
collective status report by July 17, 2017,
whichever comes first.
ENVIRONMENTAL HEARING BOARD
s/ Bernard A. Labuskes, Jr.
BERNARD A. LABUSKES, JR.
Judge
DATED: May 10, 2017
c: DEP, General Law Division:
Attention: Maria Tolentino
(via electronic mail)
For the Commonwealth of PA, DEP:
Joseph S. Cigan, Esquire
Curtis C. Sullivan, Esquire
(via electronic filing system)
For Appellants, Lancaster Against Pipelines
and Geraldine Nesbitt:
Jordan B. Yeager, Esquire
Mark L. Freed, Esquire
Lauren M. Williams, Esquire
(via electronic filing system)
App. 47
For Appellant, Sierra Club:
Joanne Kilgour, Esquire
Diana A. Csank, Esquire
(via electronic filing system)
For Permittee:
John Stoviak, Esquire
Pamela S. Goodwin, Esquire
Andrew T. Bockis, Esquire
(via electronic filing system)
App. 48
APPENDIX D
PENNSYLVANIA BULLETIN,
VOL. 46, NO. 17, APRIL 23, 2016
Water Quality Certification under Section,
401 of the Federal Clean Water Act for the
Atlantic Sunrise Pipeline Project
Natural Gas Pipeline Project and Related
Mitigation; FERC Docket No. CP15-138-000;
PADEP File No. WQ02-001
Northeast Region: Waterways & Wetlands Program, 2
Public Square, Wilkes-Barre, PA 18711, Joseph
Buczynski, Program Manager 570-826-2511
On April 5, 2016, the DEP issued Section 401 Water
Quality Certification to Transcontinental Gas Pipe
Line Company, LLC for the Atlantic Sunrise Pipeline
Project. The Pennsylvania Department of
Environmental Protection (Department) certifies that
the construction, operation and maintenance of the
Project complies with the applicable provisions of
sections 301—303, 306 and 307 of the Federal Clean
Water Act (33 U.S.C.A. §§ 1311—1313, 1316 and 1317).
The Department further certifies that the construction,
operation and maintenance of the projects complies
with Commonwealth water quality standards and that
the construction, operation and maintenance of the
projects does not violate applicable Commonwealth
water quality standards provided that the construction,
operation and maintenance of the projects complies
App. 49
with the conditions for this certification, including the
criteria and conditions of the following permits:
1. Discharge Permit—Transcontinental Gas Pipe
Line Company, LLC shall obtain and comply with a
Department National Pollutant Discharge Elimination
System (NPDES) permit for the discharge of water
from the hydrostatic testing of the pipeline pursuant to
Pennsylvania’s Clean Streams Law (35 P.S.
§§ 691.1—691.1001) and all applicable implementing
regulations (25 Pa. Code Chapter 92a).
2. Erosion and Sediment Control Permit—
Transcontinental Gas Pipe Line Company, LLC shall
obtain and comply with the Department’s Chapter 102
Erosion and Sediment Control General Permit for
Earth Disturbance Associated with Oil and Gas
Exploration, Production, Processing or Treatment
issued pursuant to Pennsylvania’s Clean Streams Law
and Storm Water Management Act (32 P.S.
§§ 680.1—680.17) and all applicable implementing
regulations (25 Pa. Code Chapter 102).
3. Water Obstruction and Encroachment Permits—
Transcontinental Gas Pipe Line Company, LLC shall
obtain and comply with a Department Chapter 105
Water Obstruction and Encroachment Permits for the
construction, operation and maintenance of all water
obstructions and encroachments associated with the
project pursuant to Pennsylvania’s Clean Streams Law,
Dam Safety and Encroachments Act (32 P.S.
§§ 673.1—693.27), and Flood Plain Management Act
(32 P.S. §§ 679.101—679.601.) and all applicable
implementing regulations (25 Pa. Code Chapter 105).
App. 50
4. Water Quality Monitoring—The Department
retains the right to specify additional studies or
monitoring to ensure that the receiving water quality
is not adversely impacted by any operational and
construction process that may be employed by
Transcontinental Gas Pipe Line Company, LLC.
5. Operation—For each Project under this
certification, Transcontinental Gas Pipe Line
Company, LLC shall at all times properly operate and
maintain all Project facilities and systems of treatment
and control (and related appurtenances) which are
installed to achieve compliance with the terms and
conditions of this Certification and all required
permits. Proper operation and maintenance includes
adequate laboratory controls, appropriate quality
assurance procedures, and the operation of backup or
auxiliary facilities or similar systems installed by
Transcontinental Gas Pipe Line Company, LLC.
6. Inspection—The Projects, including all relevant
records, are subject to inspection at reasonable hours
and intervals by an authorized representative of the
Department to determine compliance with this
Certification, including all required permits required,
and Pennsylvania’s Water Quality Standards. A copy
of this Certification shall be available for inspection by
the Department during such inspections of the
Projects.
7. Transfer of Projects—If Transcontinental Gas
Pipe Line Company, LLC intends to transfer any legal
or equitable interest in the Projects which is affected by
this Certification, Transcontinental Gas Pipe Line
Company, LLC shall serve a copy of this Certification
upon the prospective transferee of the legal and
App. 51
equitable interest at least thirty (30) days prior to the
contemplated transfer and shall simultaneously inform
the Department Regional Office of such intent. Notice
to the Department shall include a transfer agreement
signed by the existing and new owner containing a
specific date for transfer of Certification responsibility,
coverage, and liability between them.
8. Correspondence—All correspondence with and
submittals to the Department concerning this
Certification shall be addressed to the Department of
Environmental Protection, Northeast Regional Office,
Waterways and Wetlands Program, 2 Public Square,
Wilkes-Barre, PA 18701-1915.
9. Reservation of Rights—The Department may
suspend or revoke this Certification if it determines
that Transcontinental Gas Pipe Line Company, LLC
has not complied with the terms and conditions of this
Certification. The Department may require additional
measures to achieve compliance with applicable law,
subject to Transcontinental Gas Pipe Line Company,
LLC’s applicable procedural and substantive rights.
10. Other Laws—Nothing in this Certification shall
be construed to preclude the institution of any legal
action or relieve Transcontinental Gas Pipe Line
Company, LLC from any responsibilities, liabilities, or
penalties established pursuant to any applicable
federal or state law or regulation.
11. Severability—The provisions of this Certification
are severable and should any provision of this
Certification be declared invalid or unenforceable, the
remainder of the Certification shall not be affected
thereby.
App. 52
Any person aggrieved by this action may appeal,
pursuant to Section 4 of the Environmental Hearing
Board Act, 35 P.S. § 7614, and the Administrative
Agency Law, 2 Pa.C.S. Chapter 5A, to the
Environmental Hearing Board, Second Floor Rachel
Carson State Office Building, 400 Market Street, PO
Box 8457, Harrisburg, PA 17105-8457, 717-787-3483.
TDD users may contact the Board through the
Pennsylvania AT&T Relay Service, 800-654-5984.
Appeals must be filed with the Environmental Hearing
Board within 30 days of receipt of written notice of this
action unless the appropriate statute provides a
different time period. Copies of the appeal form and the
Board’s rules of practice and procedure may be
obtained from the Board. The appeal form and the
Board’s rules of practice and procedure are also
available in braille or on audiotape from the Secretary
to the Board at 717-787-3483. 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 reach the board within 30 days. You do not need
a lawyer to file an appeal with the board.
Important legal rights are at stake, however, so you
should show this document to a lawyer at once. If you
cannot afford a lawyer, you may qualify for free pro
bono representation. Call the secretary to the board
(717-787-3483) for more information.
App. 53
DAM SAFETY
Central Office: Bureau of Waterways Engineering
and Wetlands, Rachel Carson State Office Building,
Floor 3, 400 Market Street, P.O. Box 8460, Harrisburg,
PA 17105-8460
D51-012. East Park Reservoir Dam, Aramark
Tower, 2nd Floor, 1101 Market Street, Philadelphia,
PA 19103. Permit issued to modify, operate, and
maintain East Park Reservoir Dam within Schuylkill
River Watershed, for the purpose of meeting the
Commonwealth’s regulations (Philadelphia, PA
Quadrangle Latitude: 35.985833; Longitude:
-75.188333) in Philadelphia City, Philadelphia County.
EROSION AND SEDIMENT CONTROL
The following Erosion and Sediment Control
permits have been issued.
Persons aggrieved by an action may appeal that
action to the Environmental Hearing Board (Board)
under section 4 of the Environmental Hearing Board
Act and 2 Pa.C.S. §§ 501—508 and 701—704. The
appeal should be sent to the Environmental Hearing
Board, Second Floor, Rachel Carson State Office
Building, 400 Market Street, PO Box 8457, Harrisburg,
PA 17105-8457, (717) 787-3483. TDD users may
contact the Board through the Pennsylvania AT&T
Relay Service, (800) 654-5984. Appeals must be filed
with the Board within 30 days of publication of this
notice in the Pennsylvania Bulletin unless the
appropriate statute provides a different time period.
Copies of the appeal form and the Board’s rules of
practice and procedure may be obtained from the
Board. The appeal form and the Board’s rules of
App. 54
practice and procedure are also available in Braille or
on audiotape from the Secretary to the Board at (717)
787-3483. This paragraph does not, in and of itself,
create a right of appeal beyond that permitted by
applicable statutes and decisional law.
For individuals who wish to challenge an action, the
appeal must reach the Board within 30 days. A lawyer
is not needed to file an appeal with the Board.
Important legal rights are at stake, however, so
individuals should show this notice to a lawyer at once.
Persons who cannot afford a lawyer may qualify for
free pro bono representation. Call the Secretary to the
Board at (717) 787-3483 for more information.
Southwest Region: Waterways & Wetlands Program
Manager, 400 Waterfront Drive, Pittsburgh, PA 152224745.
App. 55
APPENDIX E
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
Nos. 16-2211, 16-2212, 16-2218, 16-2400
[Filed October 11, 2018]
__________________________________________
DELAWARE RIVERKEEPER
)
NETWORK; DELAWARE RIVERKEEPER )
MAYA VAN ROSSUM,
)
Petitioners, No. 16-2211
)
)
LANCASTER AGAINST PIPELINES,
)
Petitioner, No. 16-2212
)
)
GERALDINE NESBITT,
)
Petitioner, No. 16-2218
)
)
SIERRA CLUB,
)
Petitioner, No. 16-2400
)
)
v.
)
)
SECRETARY PENNSYLVANIA
)
DEPARTMENT OF ENVIRONMENTAL
)
PROTECTION; PENNSYLVANIA
)
DEPARTMENT OF ENVIRONMENTAL
)
PROTECTION,
)
Respondents
)
)
TRANSCONTINENTAL GAS PIPE LINE
)
COMPANY, LLC,
)
App. 56
Intervenor Respondent
)
_________________________________________ )
SUR PETITION FOR REHEARING
Present: SMITH, Chief Judge, MCKEE, AMBRO,
CHAGARES, JORDAN, HARDIMAN, GREENAWAY,
JR., VANASKIE, SHWARTZ, KRAUSE, RESTREPO,
BIBAS, and SCIRICA,1 Circuit Judges.
The petition for rehearing filed by petitioners in
Nos. 16-2211, 16-2212 and 16-2400 having been
submitted to the judges who participated in the
decision of this Court and to all the other available
circuit judges of the circuit in regular active service,
and no judge who concurred in the decision having
asked for rehearing, and a majority of the judges of the
circuit in regular service not having voted for
rehearing, the petition for rehearing by the panel and
the Court en banc, is denied.
BY THE COURT,
s/ Thomas M. Hardiman
Circuit Judge
Dated: October 11, 2018
CJG/cc: All Counsel of Record
1
Judge Scirica’s vote is limited to panel rehearing.
This is a copy of a public record, reproduced as it was published. It is not legal advice, and it may not be the version a court would rely on. Check the official source before you cite it.