Respondents Brief — Delaware Riverkeeper Network, et al., Petitioners v. Secretary, Pennsylvania Department of Environmental Protection, et al.

Supreme Court briefMar 27, 2019

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No. 18-1106

In the Supreme Court of the United States

__________________

DELAWARE RIVERKEEPER NETWORK; DELAWARE

RIVERKEEPER, MAYA VAN ROSSUM; AND LANCASTER

AGAINST PIPELINES,

Petitioners,

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

__________________

BRIEF IN OPPOSITION FOR

RESPONDENT TRANSCONTINENTAL

GAS PIPE LINE COMPANY, LLC

__________________

JOHN F. STOVIAK

Counsel of Record

PATRICK F. NUGENT

SAUL EWING ARNSTEIN & LEHR LLP

Centre Square West

1500 Market Street, 38th Floor

Philadelphia, PA 19102

(215) 972-1095

John.Stoviak@saul.com

Counsel for Respondent Transcontinental

Gas Pipe Line Company, LLC

(counsel continued on inside cover)

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

ANDREW T. BOCKIS

SAUL EWING ARNSTEIN

& LEHR LLP

2 N. 2nd Street

7th Floor

Harrisburg, PA 17101

PAMELA S. GOODWIN

SAUL EWING ARNSTEIN

& LEHR LLP

650 College Road East

Suite 4000

Princeton, NJ 08540

ELIZABETH U. WITMER

SAUL EWING ARNSTEIN

& LEHR LLP

1200 Liberty Ridge Drive

Suite 200

Wayne, PA 19087

QUESTIONS PRESENTED

Under the Natural Gas Act, any appeal from a State

acting pursuant to federal law to issue or deny a permit

required under federal law for an interstate natural

gas pipeline is subject to the “original and exclusive

jurisdiction” of the federal Courts of Appeals. See 15

U.S.C. § 717r(d)(1) (emphasis added). Congress

enacted this provision to avoid delays caused by

“sequential administrative and State court and Federal

court appeals that [could] kill a project with a death by

a thousand cuts.” See Islander E. Pipeline Co. v. Conn.

Dep’t of Envtl. Prot., 482 F.3d 79, 85 (2d Cir. 2006)

(quotations omitted).

To obtain federal approval to construct a pipeline

that may result in a discharge into navigable waters,

an applicant must obtain “a certification from the

State” certifying “that any such discharge will comply

with” applicable, federally-approved water-quality

standards, unless the State waives the Clean Water

Act’s requirements by failing to act “within a

reasonable period of time (which shall not exceed one

year).” 33 U.S.C. § 1341(a)(1).

The questions presented are:

1. Whether the Third Circuit, in accord with the

Congressional mandates set forth in the Natural Gas

Act, properly applied a federal finality standard to and

correctly asserted jurisdiction over the review of the

Pennsylvania Department of Environmental

Protection’s Section 401 Water Quality Certification for

an interstate natural gas pipeline project, pursuant to

federal law and consistent with the decisions of this

Court and the First, Second, and Third Circuits?

2. Whether Petitioners waived their argument, not

presented below to the Third Circuit, that the Third

Circuit’s ruling violates the Tenth Amendment?

3. Whether the Third Circuit’s ruling that it has

exclusive jurisdiction under the Natural Gas Act to

review a Clean Water Act Section 401 Water Quality

Certification – without the Certification first being

reviewed by the Pennsylvania Environmental Hearing

Board – comports with the Tenth Amendment and this

Court’s precedent when: (a) the ruling does not dictate

what Pennsylvania’s legislature must or must not do;

and (b) Pennsylvania’s participation in the Clean

Water Act’s scheme of cooperative federalism is a

voluntary choice?

iii

RULE 29.6

CORPORATE DISCLOSURE STATEMENT

Transcontinental Gas Pipe Line Company, LLC

(“Transco”) is a natural gas pipeline company engaged

in the transportation of natural gas in interstate

commerce, which owns and operates an interstate

natural gas transmission system that extends from

Texas, Louisiana and the offshore Gulf of Mexico area

to a terminus in the New York City metropolitan area.

Its parent corporation is Williams Partners Operating,

LLC, which is a wholly-owned subsidiary of The

Williams Companies, Inc. (NYSE: WMB). We have no

knowledge of any other entity owning 10% or more of

Transco or Williams Partners Operating, LLC.

TABLE OF CONTENTS

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

RULE 29.6 CORPORATE DISCLOSURE

STATEMENT . . . . . . . . . . . . . . . . . . . . . . . . . . . iii

TABLE OF CITED AUTHORITIES . . . . . . . . . . . . vii

INTRODUCTION. . . . . . . . . . . . . . . . . . . . . . . . . . . . 1

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

The Atlantic Sunrise Project. . . . . . . . . . . . . . 4

II.

The FERC Review Process. . . . . . . . . . . . . . . . 5

III.

Authorizations Required Under the Clean

Water Act. . . . . . . . . . . . . . . . . . . . . . . . . . . . . 6

IV.

PADEP Issues the Section 401 Water Quality

Certification to Transco. . . . . . . . . . . . . . . . . . 7

Petitioners Appeal the Section 401 Water

Quality Certification to the Third Circuit and

the Pennsylvania Environmental Hearing

Board.. . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

VI.

The Third Circuit Rules That It Has

Exclusive Jurisdiction Under the Natural

Gas Act to Review the Section 401 Water

Quality Certification and Denies the

Petitions for Review. . . . . . . . . . . . . . . . . . . . . 9

REASONS FOR DENYING THE PETITION. . . . . 11

The Third Circuit’s Decision Does Not

Conflict with the Decisions of This Court, or

Any Other Federal Court, and Does Not

Merit This Court’s Review. . . . . . . . . . . . . . . 11

A. The Application of a Federal Finality

Standard in the Decision Below Is Fully

Consistent with the Decisions of This

Court and Those of the First, Second, and

Third Circuits. . . . . . . . . . . . . . . . . . . . . . 12

1. The Third Circuit Applied the Same

Federal Finality Standard as the First

Circuit in Berkshire. . . . . . . . . . . . . . . 12

2. The Second Circuit Applied the Same

Federal Finality Standard as Part of

Its Ripeness Analysis in Murphy. . . . 20

3. The Decision Below Is Consistent with

the Third Circuit’s Contemporaneous

Decision in Bordentown.. . . . . . . . . . . 21

4. The Record on Appeal to Federal

Courts of Appeals Is Sufficient. . . . . . 24

5. The Decision Below Presents No

Threat to Petitioners’ Due Process

Rights. . . . . . . . . . . . . . . . . . . . . . . . . . 28

B. The Decision Below Does Not Violate the

Tenth Amendment. . . . . . . . . . . . . . . . . . 30

1. Petitioners Waived Their Tenth

Amendment Challenge. . . . . . . . . . . . 31

2. This Court’s Decisions in Murphy and

Hodel Demonstrate That the Decision

Below Does Not Violate the Tenth

Amendment. . . . . . . . . . . . . . . . . . . . . 32

CONCLUSION . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 36

vii

TABLE OF CITED AUTHORITIES

CASES

Adorers of the Blood of Christ v. FERC,

897 F.3d 187 (3d Cir. 2018), cert. denied sub

nom., Adorers of the Blood of Christ, U.S.

Province v. FERC, No. 18-548, 2019 WL 660190

(U.S. Feb. 19, 2019) . . . . . . . . . . . . . . . . . . . 4, 5, 6

Arkansas v. Oklahoma,

503 U.S. 91 (1992). . . . . . . . . . . . . . . . . . . . . . . . 34

Bank of N. Shore v. Fed. Deposit Ins. Corp.,

743 F.2d 1178 (7th Cir. 1984). . . . . . . . . . . . . . . 29

Bell v. New Jersey,

461 U.S. 773 (1983). . . . . . . . . . . . . . . . . . . . 12, 13

Bennett v. Spear,

520 U.S. 154 (1997). . . . . . . . . . . . . . . . . . . . . . . 13

Berkshire Envtl. Action Team, Inc. v. Tenn. Gas

Pipeline Co.,

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

Camp v. Pitts,

411 U.S. 138 (1973). . . . . . . . . . . . . . . . . . . . . . . 24

City of Tacoma v. Taxpayers of Tacoma,

357 U.S. 320 (1958). . . . . . . . . . . . . . . . . . . . . . . 35

Darby v. Cisneros,

509 U.S. 137 (1993). . . . . . . . . . . . . . . . . . . . 13, 17

Del. Riverkeeper Network v. Sec’y Pa. Dept. of Envtl.

Prot.,

833 F.3d 360 (3d Cir. 2016) . . . . . . . 10, 13, 34, 35

viii

Del. Riverkeeper Network v. Sec’y of Pa. Dep’t of

Envtl. Prot.,

870 F.3d 171 (3d Cir. 2017) . . . . . . . . . . . . . 10, 15

Del. Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl.

Prot.,

903 F.3d 65 (3d Cir. 2018) . . . . . . . . . . . . . passim

Fla. Power & Light Co. v. Lorion,

470 U.S. 729 (1985). . . . . . . . . . . . . . . . . . . . . . . 24

Hodel v. Va. Surface Mining & Reclamation Ass’n,

Inc.,

452 U.S. 264 (1981). . . . . . . . . . . . . . . . . . . . 34, 35

Hoehne v. Cty. of San Benito,

870 F.2d 529 (9th Cir. 1989). . . . . . . . . . . . . . . . 20

Hoopa Valley Tribe v. FERC,

913 F.3d 1099 (D.C. Cir. 2019). . . . . . . . . . . . . . 26

Islander E. Pipeline Co. v. Conn. Dep’t of Envtl.

Prot.,

482 F.3d 79 (2d Cir. 2006) . . . . . . . . . 2, 19, 34, 35

Islander E. Pipeline Co. v. McCarthy,

525 F.3d 141 (2d Cir. 2008) . . . . . . . . . . . . . . . 1, 2

Millennium Pipeline Co. v. Seggos,

288 F. Supp. 3d 530 (N.D.N.Y. 2017). . . . . . . . . 34

Millennium Pipeline Co. v. Seggos,

860 F.3d 696 (D.C. Cir. 2017). . . . . . . . . . . . 27, 28

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

138 S. Ct. 1461 (2018). . . . . . . . . . . . . . . . . . 32, 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). . . . . . . . . . . . . . . . . . . . . . . 33

Niagara Mohawk Power Corp. v. N.Y. State Dep’t of

Envtl. Conservation,

624 N.E.2d 146 (N.Y. 1993), cert. denied,

511 U.S. 1141 (1994). . . . . . . . . . . . . . . . . . . 34, 35

Rhode Island v. EPA,

378 F.3d 19 (1st Cir. 2004) . . . . . . . . . . . . . . . . . 13

Schneidewind v. ANR Pipeline Co.,

485 U.S. 293 (1988). . . . . . . . . . . . . . . . . . . . . . . . 1

Solebury Twp. & Buckingham Twp. v. PADEP,

No. 2002-323-L, 2008 WL 5426378 (Pa. EHB

Dec. 23, 2008) . . . . . . . . . . . . . . . . . . . . . . . . . . . 26

Spence v. Zimmerman,

873 F.2d 256 (11th Cir. 1989). . . . . . . . . . . . . . . 20

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

983 F.2d 1285 (3d Cir. 1993) . . . . . . . . . . . . . . . 20

Tenn. Gas Pipeline Co. v. Del. Riverkeeper Network,

921 F. Supp. 2d 381 (M.D. Pa. 2013) . . . . . . 21, 23

Twp. of Bordentown, New Jersey v. FERC,

903 F.3d 234 (3d Cir. 2018) . . . . . . . . . . . . passim

United States v. United Foods, Inc.,

533 U.S. 405 (2001). . . . . . . . . . . . . . . . . . . . 18, 31

Weaver’s Cove Energy, LLC v. Rhode Island Dep’t of

Envtl. Mgmt.,

524 F.3d 1330 (D.C. Cir. 2008). . . . . . . . . . . . . . 27

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

Hamilton Bank of Johnson City,

473 U.S. 172 (1985). . . . . . . . . . . . . . . . . 16, 17, 20

CONSTITUTION

U.S. Const. art. I, § 8, cl. 3. . . . . . . . . . . . . . . . . . . . 35

STATUTES AND REGULATIONS

5 U.S.C. § 704 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 13

15 U.S.C. §§ 717 et seq . . . . . . . . . . . . . . . . . . . . . . . . 1

15 U.S.C. § 717b(d). . . . . . . . . . . . . . . . . . . . . . . . . . . 1

15 U.S.C. § 717b(d)(3) . . . . . . . . . . . . . . . . . . . . . . . . 2

15 U.S.C. § 717r(d) . . . . . . . . . . . . . . . . . . . . . . . . . . . 9

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

18 C.F.R. § 385.2014(b) . . . . . . . . . . . . . . . . . . . . . . 24

18 C.F.R. § 385.2014(c) . . . . . . . . . . . . . . . . . . . . . . 24

33 U.S.C. § 1341 . . . . . . . . . . . . . . . . . . . . . . . . . . . . . 3

33 U.S.C. § 1341(a)(1) . . . . . . . . . . . . . . . . 2, 7, 26, 34

33 U.S.C. § 1344(a). . . . . . . . . . . . . . . . . . . . . . . . . . . 7

33 U.S.C. § 1369(b)(1) . . . . . . . . . . . . . . . . . . . . . . . 30

35 PA. STAT. ANN. § 7513(a) . . . . . . . . . . . . . . . . . . . 16

40 C.F.R. § 123.30 . . . . . . . . . . . . . . . . . . . . . . . . . . 30

45 Pa. Bull. 3274 (June 20, 2015) . . . . . . . . . . . . . . 24

79 Fed. Reg. 44,023-02 (2014) . . . . . . . . . . . . . . . . . . 5

OTHER AUTHORITIES

Accession No. 20181004-3012, Letter order granting

Transco’s request to place facilities into service

(Oct. 4, 2018), available on FERC’s eLibrary in

Docket

Number

CP15-138-000,

https://www.ferc.gov/docs-filing/elibrary.asp. . . . 5

Transcon. Gas Pipe Line Co., 158 FERC ¶ 61125

(Feb. 3, 2017). . . . . . . . . . . . . . . . . . . . . . . . . 1, 4, 6

Tr. of Oral Arg., Del. Riverkeeper Network v. Sec’y

Pa. Dep’t of Envtl. Prot., Nos. 16-2211, 16-2212,

16-2218, 16-2400 (3d Cir. Nov. 7, 2017) . . . . . . 31

Williams, Overview, Atlantic Sunrise Pipeline

Project, http://atlanticsunriseexpansion.com/

about-the-project/overview/ . . . . . . . . . . . . . . . . . 4

INTRODUCTION

After several years of intensive review and

consideration of thousands of comments from affected

parties, the Federal Energy Regulatory Commission

(“FERC”) issued a certificate order to Transcontinental

Gas Pipe Line Company, LLC (“Transco”) approving

the construction and operation of a fully subscribed and

nearly $3 billion interstate natural gas pipeline project

called the Atlantic Sunrise Project (the “Project”). See

Transcon. Gas Pipe Line Co., 158 FERC ¶ 61125 (Feb.

3, 2017) (“Certificate Order”). The Project involved the

construction of almost 200 miles of pipeline located in

rights of ways specifically reviewed and approved by

FERC, the construction of two new compressor

stations, and the modification of more than 42 other

facilities along the Transco system. FERC determined

that the Project was in the public interest. Among

other things, the Project will provide enough cleanburning natural gas to meet the daily needs of more

than 7 million American homes.

The Natural Gas Act, 15 U.S.C. §§ 717 et seq.,

comprehensively regulates interstate natural gas

pipelines – such as the Project at issue here – and

preempts State regulation of interstate natural gas

pipeline facilities, expressly limiting State regulation

to the administration of three federal regulatory

statutes, including the Clean Water Act.1

See

Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 300,

305, 308 (1988); Islander E. Pipeline Co. v. McCarthy,

The other two statutes are the Coastal Zone Management Act

and the Clean Air Act. See 15 U.S.C. § 717b(d).

525 F.3d 141, 143-44 (2d Cir. 2008); 15 U.S.C.

§ 717b(d)(3).

In order to prevent delays due to “a series of

sequential administrative and State court and Federal

court appeals that [could] kill a project with a death by

a thousand cuts just in terms of the time frames

associated with going through all those appeal

processes,” Islander East Pipeline Co. v. Connecticut

Department of Environmental Protection, 482 F.3d 79,

85 (2d Cir. 2006) (quotations omitted), Congress

expressly declared that any appeal from a State acting

pursuant to federal law to issue or deny a permit

required under federal law for an interstate natural

gas pipeline is subject to the “original and exclusive

jurisdiction” of the federal Courts of Appeals. See 15

U.S.C. § 717r(d)(1).

Under Section 401 of the Clean Water Act, any

applicant seeking a federal permit for an activity that

“may result in any discharge into the navigable waters”

must obtain “a certification from the State in which the

discharge originates or will originate . . . that any such

discharge will comply with” the State’s federallyapproved water quality standards.

33 U.S.C.

§ 1341(a)(1). No such permit will be granted unless the

certification has been obtained or the State waives the

requirement by failing to act on an application within

a reasonable period of time, not to exceed one year. Id.

Petitioners Delaware Riverkeeper Network and

Maya van Rossum, the Delaware Riverkeeper

(collectively, “Riverkeeper”), and Lancaster Against

Pipelines, along with others who are not parties to this

petition, challenged the Pennsylvania Department of

Environmental Protection’s (“PADEP”) decision to issue

a Water Quality Certification for the Project under

Section 401 of the Clean Water Act, 33 U.S.C. § 1341.

Tellingly, this petition does not seek review of the

Third Circuit’s decision that Petitioners’ challenges to

the PADEP decision failed on the merits. Instead,

Petitioners ask this Court to review the Third Circuit’s

ruling that the Natural Gas Act gives the Court of

Appeals original and exclusive jurisdiction over

Petitioners’ challenges to PADEP’s issuance of the

Water Quality Certification – as opposed to the

Pennsylvania Environmental Hearing Board (the

“Environmental Hearing Board”), a separate and

independent quasi-judicial agency.

Petitioners’

apparent goal is to establish a process that creates

additional delays by requiring review by an

independent State Environmental Hearing Board,

separate from PADEP, as a new prerequisite before

pursuit of an appeal in the federal Courts of Appeals,

all of which directly contravenes Congressional intent

as expressed in the jurisdictional provisions of the

Natural Gas Act.

The questions presented in the petition have no

merit. The Third Circuit applied a federal finality

standard to PADEP’s issuance of the Water Quality

Certification, as did all of the courts in the cases cited

by Petitioners, so there is no conflict among the

decisions of this Court or the federal Courts of Appeals

on the finality issue. The different outcomes in the

cases cited are attributable solely to the different way

in which each State arrives at a final permitting

decision. In each case, however, the finality standard

remains the same: the federal finality standard.

The Court should also decline to entertain

Petitioners’ new Tenth Amendment challenge, which

Petitioners never raised below, and which the Third

Circuit did not address in its decision. Even if

Petitioners had preserved a Tenth Amendment

challenge, it would fail under this Court’s precedent

because: (1) the Third Circuit’s decision does not

dictate what the Commonwealth of Pennsylvania’s

legislature must or must not do; and (2) the

Commonwealth voluntarily chooses to participate in

the Clean Water Act’s scheme of cooperative

federalism.

STATEMENT OF THE CASE

The Atlantic Sunrise Project.

The Project is a nearly $3 billion investment in

critical energy infrastructure designed to supply

enough natural gas to meet the daily needs of more

than 7 million American homes by connecting

producing regions in northeastern Pennsylvania to

markets in the mid-Atlantic and southeastern States.

See Adorers of the Blood of Christ v. FERC, 897 F.3d

187, 190 (3d Cir. 2018), cert. denied sub nom., Adorers

of the Blood of Christ, U.S. Province v. FERC, No. 18548, 2019 WL 660190 (U.S. Feb. 19, 2019).2 Nine

shippers have subscribed to 100% of the incremental

firm transportation service provided by the Project,

demonstrating the need for the Project’s capacity.

Transcon. Gas Pipe Line Co., 158 FERC ¶ 61125, ¶ 11

See also Williams, Overview, Atlantic Sunrise Pipeline Project,

http://atlanticsunriseexpansion.com/about-the-project/overview/

(last visited Mar. 20, 2019).

(Feb. 3, 2017). Following a comprehensive multi-year

review process, FERC approved the Project when it

issued the Certificate Order for the Project on February

3, 2017, finding that “the public convenience and

necessity requires approval of Transco’s proposal,”

based on “the benefits that [the Project] will provide,

the absence of adverse effects on existing customers

. . . and the minimal adverse effects on landowners or

surrounding communities.” Id. ¶ 33.

Installation of the Project is complete, and FERC

authorized Transco to place the Project into service on

October 4, 2018.3

II.

The FERC Review Process.

On July 29, 2014, FERC published a Notice of Intent

to Prepare an Environmental Impact Statement for the

Planned Atlantic Sunrise Expansion, Request for

Comments on Environmental Issues, and Notice of

Public Scoping Meetings in the Federal Register, see 79

Fed. Reg. 44,023-02 (2014), and mailed it to nearly

2,500 interested parties to provide notice of the

proposed Project, see Adorers, 897 F.3d at 190-91.

FERC received more than six hundred written

comments from various interested parties, and ninetythree speakers provided comments at Project scoping

meetings. Id. at 191. Thereafter, on March 31, 2015,

Transco filed its formal application with FERC for a

Accession No. 20181004-3012, Letter order granting Transco’s

request to place facilities into service (Oct. 4, 2018), available on

FERC’s eLibrary in Docket Number CP15-138-000,

https://www.ferc.gov/docs-filing/elibrary.asp.

Certificate of Public Convenience and Necessity for the

Project. Id. at 191.

Over the course of its proceedings, FERC held

multiple notice-and-comment periods and public

meetings, and provided comprehensive responses to

public input on the Project. 1,185 written comments,

296 oral comments, and more than 900 letters were

submitted to FERC addressing various issues

regarding the Project. See Transcon. Gas Pipe Line

Co., 158 FERC ¶ 61125, ¶¶ 69, 72, 73 (Feb. 3, 2017).

Each of the Petitioners intervened in the FERC

proceedings and submitted comments to FERC

regarding the Project.4

FERC issued its Draft Environmental Impact

Statement in May 2016 and received over 1,000

comments and letters in response. See Transcon. Gas

Pipe Line Co., 158 FERC ¶ 61125, ¶ 72 (Feb. 3, 2017).

After considering the issues raised in these comments,

FERC issued its Final Environmental Impact

Statement in December 2016, see id. ¶ 75, and, on

February 3, 2017, issued Transco a Certificate of Public

Convenience and Necessity for the Project, see Adorers,

897 F.3d at 192.

III.

Authorizations Required Under the Clean

Water Act.

FERC included certain Environmental Conditions

in its Certificate Order authorizing the Project. See

generally Transcon. Gas Pipe Line Co., 158 FERC

¶ 61125, Appendix C (Feb. 3, 2017). Among these

See generally FERC Dkt. CP15-138-000.

conditions is a requirement that Transco “file with the

Secretary documentation that it has received all

applicable authorizations required under federal law

(or evidence of waiver thereof),” prior to receiving

“written authorization . . . to commence construction of

any project facilities.” Id., Appendix C ¶ 10. Among

the federal authorizations required for the Project is a

Section 404 permit under the Clean Water Act from the

United States Army Corps of Engineers. A Section 404

permit authorizes the discharge of dredged or fill

material into navigable waters.

See 33 U.S.C.

§ 1344(a). Under Section 401 of the Clean Water Act,

any applicant for a Section 404 permit to construct or

operate a facility that may result in a discharge to

navigable waters must provide the federal permitting

agency with “a certification from the State in which the

discharge originates . . . that any such discharge will

comply with” applicable, federally-approved State

water quality standards. 33 U.S.C. § 1341(a)(1).

Because of these statutory requirements, Transco had

to obtain a Section 401 Water Quality Certification

from PADEP before FERC would approve construction

activities for the Project. See Del. Riverkeeper Network

v. Sec’y Pa. Dep’t of Envtl. Prot., 903 F.3d 65, 69 (3d

Cir. 2018), App. 6.

IV.

PADEP Issues the Section 401 Water

Quality Certification to Transco.

On April 9, 2015, Transco applied to PADEP for a

Section 401 Water Quality Certification. See Del.

Riverkeeper Network, 903 F.3d at 69, App. 6. Notice of

receipt of Transco’s application to PADEP was

published in the Pennsylvania Bulletin on June 20,

2015. See id. This notice referenced Transco’s March

31, 2015 application pending before FERC, informed

the public of PADEP’s intent to review Transco’s

application for a Section 401 Water Quality

Certification, and invited the public to submit

comments regarding Transco’s application. After a

public comment period, in which Riverkeeper

participated by submitting comments, PADEP issued

a Section 401 Water Quality Certification in April 2016

certifying that the Project would comply with

Pennsylvania’s water quality standards if Transco

obtained the following additional permits: (1) a PADEP

National Pollutant Discharge Elimination System

permit (or coverage under an associated General

Permit) for the discharge of water from hydrostatic

testing; (2) a PADEP Chapter 102 Erosion and

Sediment Control General Permit for Earth

Disturbance Associated with Oil and Gas Exploration,

Production, Processing or Treatment; and (3) PADEP

Chapter 105 Water Obstruction and Encroachment

Permits (“105 Permits”).5 See id., App. 6-7. Transco

subsequently obtained each of the approvals on which

the Section 401 Water Quality Certification was

conditioned.

Notice of PADEP’s issuance of the Section 401 Water Quality

Certification was published in the Pennsylvania Bulletin on April

23, 2016. See id., App. 6; see also App. 48.

Petitioners Appeal the Section 401 Water

Quality Certification to the Third Circuit

and the Pennsylvania Environmental

Hearing Board.

Petitioners filed petitions for review of the Section

401 Water Quality Certification with the United States

Court of Appeals for the Third Circuit under the

exclusive review provision of the Natural Gas Act, 15

U.S.C. § 717r(d)(1). See Del. Riverkeeper Network, 903

F.3d at 69, App. 7. Petitioner Lancaster Against

Pipelines (but not Riverkeeper) also filed a protective

appeal with the Environmental Hearing Board.6 See

id. The Environmental Hearing Board stayed its

proceedings pending the Third Circuit’s determination

as to jurisdiction over the petitions for review. See id.

at 69–70, App. 7.

VI.

The Third Circuit Rules That It Has

Exclusive Jurisdiction Under the Natural

Gas Act to Review the Section 401 Water

Quality Certification and Denies the

Petitions for Review.

On September 4, 2018, following briefing and

argument, the Third Circuit issued a precedential

opinion holding that it has exclusive jurisdiction under

the Natural Gas Act, 15 U.S.C. § 717r(d), to review the

In addition, Lancaster Against Pipelines and Riverkeeper filed an

appeal with the Environmental Hearing Board challenging

PADEP’s issuance of the 105 Permits for the Project. Lancaster

Against Pipelines and Riverkeeper did not file petitions for review

with the Third Circuit challenging PADEP’s issuance of the 105

Permits.

Section 401 Water Quality Certification. See Del.

Riverkeeper Network, 903 F.3d at 68, 74-75, App. 5, 1618.

This was the third time in two years that the Third

Circuit ruled that it had exclusive jurisdiction over

PADEP’s issuance of permits associated with an

interstate natural gas pipeline project. See Del.

Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot.,

833 F.3d 360, 371-72 (3d Cir. 2016); Del. Riverkeeper

Network v. Sec’y of Pa. Dep’t of Envtl. Prot., 870 F.3d

171, 176-78 (3d Cir. 2017). In the case below, where

the issue of finality was affirmatively raised, the Third

Circuit applied a federal finality standard to determine

whether the Water Quality Certification was

reviewable under the Natural Gas Act. See Del.

Riverkeeper Network, 903 F.3d at 71-72, App. 10-12. In

applying the federal finality standard, the court

necessarily considered Pennsylvania law and procedure

because “deciding on a PADEP decision’s finality

requires reference to the Pennsylvania procedures that

produced it.” Id. at 71, App. 10. The court performed

a detailed analysis and concluded that PADEP’s

issuance of the Water Quality Certification was a final

action over which it had exclusive jurisdiction pursuant

to the Natural Gas Act because PADEP, “the initial

decisionmaker,” had “arrived at a definitive position” by

issuing the Water Quality Certification to Transco. Id.

at 74, App. 16 (quotations omitted) (emphasis in

original); see also id. at 72-75, App. 11-18. The Third

Circuit also carefully considered and held that the

Petitioners’ challenges to the Water Quality

Certification failed on the merits. Id. at 68, App. 5.

On September 18, 2018, Petitioners filed a petition

for rehearing en banc with the Third Circuit, arguing

that the court’s jurisdictional ruling was inconsistent

with a decision of another Third Circuit panel in

Township of Bordentown v. FERC, 903 F.3d 234 (3d

Cir. 2018), issued just one day after the decision in this

case. The Third Circuit submitted the rehearing

petition “to the judges who participated in the decision

of [the] Court and to all the other available circuit

judges of the circuit in regular active service,” including

Judge Chagares, the author of the Bordentown

decision. See Order on Sur Petition for Rehearing (Oct.

11, 2018), App. 56. The Third Circuit denied the

rehearing petition on October 11, 2018 and issued its

certified judgment in lieu of a formal mandate on

October 19, 2018. See id.

REASONS FOR DENYING THE PETITION

The Third Circuit’s Decision Does Not

Conflict with the Decisions of This Court,

or Any Other Federal Court, and Does Not

Merit This Court’s Review.

The decision below does not merit this Court’s

review. The Third Circuit performed a straightforward

jurisdictional analysis under the Natural Gas Act using

a federal finality standard that is fully consistent with

the decisions of this Court and other federal courts,

including the cases Petitioners cite from the First,

Second, and Third Circuits. The Court should not

entertain Petitioners’ new Tenth Amendment

challenge, which they did not advance below and the

Third Circuit had no occasion to consider. The decision

below also does not violate the Tenth Amendment

because it does not direct the State to do (or refrain

from doing) anything, and because States voluntarily

choose to participate in the Clean Water Act’s scheme

of cooperative federalism.

A. The Application of a Federal Finality

Standard in the Decision Below Is Fully

Consistent with the Decisions of This

Court and Those of the First, Second,

and Third Circuits.

1. The Third Circuit Applied the Same

Federal Finality Standard as the

First Circuit in Berkshire.

The Third Circuit applied the same federal finality

standard in the decision below as the First Circuit in

Berkshire Environmental Action Team, Inc. v.

Tennessee Gas Pipeline Company, 851 F.3d 105 (1st

Cir. 2017). See Del. Riverkeeper Network, 903 F.3d at

72-75, App. 11-18; see also id. at 71, App. 9-10 (“We

therefore join the First Circuit in holding that the

Natural Gas Act provides jurisdiction to review only

‘final agency action of a type that is customarily subject

to judicial review.’”) (quoting Berkshire, 851 F.3d at

111).

Applying a federal finality standard is

appropriate because “federal courts are courts of

limited jurisdiction” and can hear a “case only if

authorized by [a federal] statute.” Bell v. New Jersey,

461 U.S. 773, 777 (1983). States “cannot declare when

and how an agency action taken pursuant to

federal law is sufficiently final to be reviewed in

federal court.” Del. Riverkeeper Network, 903 F.3d at

74, App. 17 (emphasis added).7

There is no question that the Berkshire court used

a federal finality standard. See Berkshire, 851 F.3d at

110–11. As the First Circuit explained, Congress

creates “judicial review of agency action . . . in the

context of a long-standing and well-settled ‘strong

presumption . . . that judicial review will be available

only when agency action becomes final.’” Id. at 109

(quoting Bell, 461 U.S. at 778). “[F]inality ‘is concerned

with whether the initial decisionmaker has

arrived at a definitive position on the issue that

inflicts an actual, concrete injury.’” Id. at 110 (quoting

Darby v. Cisneros, 509 U.S. 137, 144 (1993)) (emphasis

added). “An agency action is ‘final’ only where it

‘represents the culmination of the agency’s

decisionmaking 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)); cf. Bennett v.

Spear, 520 U.S. 154, 177–78 (1997) (holding that “final

agency action” under the Administrative Procedure

Act, 5 U.S.C. § 704, must be “the consummation of the

A State acts pursuant to federal law when it issues a Water

Quality Certification. See Del. Riverkeeper Network, 903 F.3d at

70, App. 7-8 (citing Del. Riverkeeper Network v. Sec’y Pa. Dept. of

Envtl. Prot., 833 F.3d 360, 370–72 (3d Cir. 2016)). “To say

otherwise would be to ignore the [United States Environmental

Protection Agency]’s supervisory role in the setting of state water

quality standards, the fact that Water Quality Certifications must

verify compliance with federal standards, and the role of the

federal government in regulating water quality . . . .” Del.

Riverkeeper Network, 833 F.3d at 371.

agency’s decisionmaking process,” “must not be of a

merely tentative or interlocutory nature,” and “must be

one by which rights or obligations have been

determined, or from which legal consequences will

flow”) (quotations and citations omitted). The First

Circuit determined that “the Massachusetts Water

Quality Certification then under its review was nonfinal so long as the petitioners could still appeal

within” the Massachusetts Department of

Environmental Protection.

See Del. Riverkeeper

Network, 903 F.3d at 73, App. 14 (emphasis added).

The Water Quality Certification in Berkshire also was

non-final because it would not have “the force and

effect of law,” Berkshire, 851 F.3d at 111, until either

the expiration of the available “Appeal Period” to the

Massachusetts Department of Environmental

Protection or “any appeal proceedings that may result

from an appeal,” id. at 108 (quotations omitted).

In the decision below, the Third Circuit used the

same federal finality standard as the First Circuit in

Berkshire, but reached a different outcome based on

fundamentally different permitting processes in

Pennsylvania and Massachusetts. The Third Circuit

did not apply a different finality standard, as

Petitioners suggest. As the Third Circuit explained,

“PADEP’s issuance of a Water Quality Certification

was final in precisely the most important ways that the

permit in Berkshire Environmental was not.” Del.

Riverkeeper Network, 903 F.3d at 74-75, App. 18. “Two

aspects of Pennsylvania’s system for issuing Water

Quality Certifications distinguish PADEP’s decision

from the non-final one in Berkshire Environmental.”

Id. at 73, App. 14. “First, [PADEP]’s decision here

was immediately effective, notwithstanding

Petitioners’ appeals to the [Environmental

Hearing Board]. [PADEP]’s decision was neither

‘tentative [n]or interlocutory’ and was one ‘from which

legal consequences . . . flow[ed].’” Id. (quoting Del.

Riverkeeper Network v. Sec’y of Pa. Dep’t of Envtl. Prot.,

870 F.3d 171, 176 (3d Cir. 2017)) (emphasis added).

“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.” Id. “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.”

Delaware Riverkeeper Network, 903 F.3d at 73, App. 15

(quoting Berkshire, 851 F.3d at 112) (emphasis added).

“Quite the opposite.

[PADEP] and the

[Environmental Hearing] Board are entirely

independent agencies. Each conducts a separate

proceeding, under separate rules, overseen by

separately appointed officers.” Id. (emphasis added).

Petitioners attempt to minimize this important

distinction by using the metaphor that the

Environmental Hearing “Board is, in essence,

operating down the hall from, instead of within the

same office as” PADEP. See Pet. at 15-16. Petitioners

cannot so easily dismiss the legal significance attached

to the fact that the Environmental Hearing Board “is

wholly separate from PADEP” and an “‘independent

quasi-judicial agency,’” whose “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.” Delaware Riverkeeper

Network, 903 F.3d at 72, App. 13 (quoting 35 PA. STAT.

ANN. § 7513(a)). “Whether state law permits further

review by the same agency that makes the initial

decision or provides for an appeal to a structurallyseparate body is probative of whether that decision is

final.” Id. at 74, App. 16; see also Twp. of Bordentown,

New Jersey v. FERC, 903 F.3d 234, 269 n.22 (3d Cir.

2018) (recognizing that whether State “schemes

. . . create a single or unitary proceeding” is probative

in determining finality). Whether the Environmental

Hearing Board is separate from PADEP is probative in

determining finality because “[f]inality, at bottom, is

‘concerned with whether the initial decisionmaker has

arrived at a definitive position on the issue.’” Id. at 74,

App. 16 (quoting Williamson Cty. Reg’l Planning

Comm’n v. Hamilton Bank of Johnson City, 473 U.S.

172, 193 (1985)) (emphasis added). PADEP – the

initial decisionmaker – “has said its piece” by issuing

the Water Quality Certification. Id.; see also id. at 73,

App. 15 (“PADEP’s issuance of a Water Quality

Certification is that agency’s final action, leaving

nothing for [PADEP] to do . . . .”).

Petitioners argue that the Third Circuit’s reliance

on this Court’s decision in Williamson is misplaced

because Williamson “is inapposite,” Pet. at 18 n.2, and

“did not, in any way, hold that a state’s definition of

finality in its regulatory scheme may be disregarded by

the courts,” Pet. at 19 n.2. Williamson applied the

same federal finality standard, which focuses the

finality inquiry on “whether the initial decisionmaker

has arrived at a definitive position.” Williamson, 473

U.S. at 193. Tellingly, both the First Circuit in

Berkshire and the Second Circuit in Murphy v. New

Milford Zoning Commission relied on Williamson. See

Berkshire, 851 F.3d at 110-11; Murphy v. New Milford

Zoning Comm’n, 402 F.3d 342, 347–53 (2d Cir. 2005).

In their discussion of Berkshire, Petitioners also cite

this Court’s decision in Darby v. Cisneros, 509 U.S. 137

(1993), which they incorrectly claim “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.” Pet. at 13. Darby

does not support this proposition; finality was not even

at issue in Darby. See Darby, 509 U.S. at 144

(“Respondents concede that petitioners’ claim is ‘final’

. . . .”).8 At issue in Darby was “the judicial doctrine of

exhaustion of administrative remedies” which is

“conceptually distinct from the doctrine of finality.”

Id.; see also id. at 145 (“We therefore must consider

whether § 10(c) [of the Administrative Procedure Act]

. . . limits the authority of courts to impose additional

exhaustion requirements as a prerequisite to judicial

review.”).

Petitioners never raised an exhaustion argument

below, and the Third Circuit did not reach that issue.

See Delaware Riverkeeper Network, 903 F.3d at 74,

Like the First Circuit in Berkshire and the Second Circuit in

Murphy, the Court in Darby also cited Williamson’s holding that

the “finality requirement is concerned with whether the initial

decisionmaker has arrived at a definitive position.” See id.

(quoting Williamson, 473 U.S. at 193).

App. 16 (“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 [Environmental Hearing Board].”).

Petitioners now appear to argue that an exhaustion

requirement should be added into Section 19(d) of the

Natural Gas Act because Sections 19(a) and (b) – which

govern review of FERC’s orders – do not permit judicial

review until FERC has ruled on requests for rehearing.

See Pet. at 20 n.3.

While this Court has “in some instances . . . allowed

a respondent to defend a judgment on grounds other

than those pressed or passed upon below,” this Court

has declined “to allow a petitioner to assert new

substantive arguments attacking, rather than

defending, the judgment when those arguments were

not pressed in the court whose opinion [the Court is]

reviewing, or at least passed upon by it.” United States

v. United Foods, Inc., 533 U.S. 405, 417 (2001)

(emphasis added). The Court should proceed no

differently here and should decline to consider

Petitioners’ new exhaustion argument attacking the

judgment below, which was neither pressed by

Petitioners nor passed upon by the Third Circuit.

Even if Petitioners had raised exhaustion, the Third

Circuit would have reached the same result and

exercised jurisdiction over the challenges to the Water

Quality Certification because Section 19(d) of the

Natural Gas Act does not require exhaustion of

administrative remedies to trigger the original and

exclusive jurisdiction of the federal Courts of Appeals.

See Berkshire, 851 F.3d at 112-13 (noting that

Congress, through 15 U.S.C. § 717r(d)(1), divested

“states of their customary review of state agency orders

and opinions in this field”); see also id. at 110 (citing

decisions of “other courts that have found exhaustion of

administrative remedies unnecessary to trigger the

exclusive and original jurisdiction of a United States

Circuit Court of Appeals under § 717r(d)(1)”);

Bordentown, 903 F.3d at 271 n.25 (“[O]ur own

limitation to hearing only final orders is not necessarily

tantamount to creating an exhaustion requirement in

the state process. . . . [W]e may consider a judicial

challenge to [a final] order despite the petitioner’s

failure to exhaust . . . state administrative remedies.”).

Moreover, that Congress expressly included an

exhaustion requirement for FERC’s orders but chose

not to impose a similar requirement for permits issued

by State agencies is further indication that it would be

inappropriate to read an exhaustion requirement into

Section 19(d). Indeed, Section 19(d)’s legislative

history indicates that developers “were encountering

difficulty proceeding with natural gas projects that

depended on obtaining state agency permits,” and that

Congress enacted Section 19(d) to remedy this difficulty

and avoid delays created by “sequential administrative

. . . appeals” in State fora “that [could] kill a project

with a death by a thousand cuts.” See Islander, 482

F.3d at 85 (quotations omitted). In addition, the

rehearing process for FERC’s orders is part of a single,

unitary proceeding before FERC, unlike in

Pennsylvania where a separate quasi-judicial agency

(the Environmental Hearing Board) reviews PADEP’s

final permitting decisions in a separate, independent

proceeding.

2. The Second Circuit Applied the Same

Federal Finality Standard as Part of

Its Ripeness Analysis in Murphy.

The decision below presents no conflict with the

Second Circuit’s decision in Murphy v. New Milford

Zoning Comm’n, 402 F.3d 342 (2d Cir. 2005). As an

initial matter, Murphy involved an issue of local zoning

law and did not involve a State acting pursuant to

federal law, as with the decision below and Berkshire.

See id. at 345. Murphy also was governed by “specific

ripeness requirements applicable to land use disputes.”

Id. at 347.

Nevertheless, the ripeness standard is a federal

standard, id. at 347, and the first component involves

determining whether “the entity charged with

implementing the zoning regulations” has taken a

“final, definitive position,” id. at 348 (citing

Williamson, 473 U.S. at 186), which is the same federal

finality standard applied below and in each of the

decisions Petitioners cite.9 Whereas in Murphy the

local zoning authority had not taken a “final, definitive

position” as to how the homeowners could use their

property, Murphy, 402 F.3d at 347, 352, here, PADEP

Both the Third Circuit in Taylor Inv., Ltd. v. Upper Darby Twp.,

983 F.2d 1285 (3d Cir. 1993) and the Ninth Circuit in Hoehne v.

Cty. of San Benito, 870 F.2d 529 (9th Cir. 1989) applied the same

federal finality standard, relying on Williamson. See Taylor, 983

F.2d at 1290–94; Hoehne, 870 F.2d at 531–36. The third decision

Petitioners cite – Spence v. Zimmerman, 873 F.2d 256 (11th Cir.

1989) – does not even mention finality or the standard articulated

in Williamson, much less provide any countervailing analysis to

support Petitioners’ argument. See Pet. at 18.

– the entity charged with implementing the Water

Quality Certification permitting program in

Pennsylvania10 – had taken a “final, definitive position”

by issuing the Water Quality Certification to Transco.

3. The Decision Below Is Consistent

with

the Third Circuit’s

Contemporaneous Decision in

Bordentown.

The Third Circuit’s decision below is fully consistent

with its contemporaneous decision in Bordentown.

Both decisions are precedential decisions of the Third

Circuit and were circulated to all active judges of that

court before they were published. See 3d Cir. Internal

Operating Procedure 5.5.4. Petitioners submitted a

petition for rehearing en banc with the Third Circuit,

arguing that the decision below and Bordentown

conflict, but the Third Circuit denied rehearing en

banc. See Order on Sur Petition for Rehearing (Oct. 11,

2018), App. 56. Petitioners ask this Court to recognize

a conflict between the Third Circuit’s decisions where

apparently the Third Circuit saw none.

It is hardly surprising that the Third Circuit

declined to rehear this case en banc. The absence of

any conflict between the two decisions is plain. As the

See Tenn. Gas Pipeline Co. v. Del. Riverkeeper Network, 921 F.

Supp. 2d 381, 390 (M.D. Pa. 2013) (“PADEP is the state

administrative agency that is charged by the Clean Water Act to

issue, condition, or deny water quality certifications, not the

[Environmental Hearing Board].”), rejected on other grounds by

Del. Riverkeeper Network, 903 F.3d at 71, App. 10-11; see also Del.

Riverkeeper Network, 903 F.3d at 69, App. 6 (“Transco had to

obtain a Water Quality Certification from PADEP . . . .”).

Third Circuit explained, “[w]hether 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.” Delaware Riverkeeper Network, 903

F.3d at 74, App. 16 (emphasis added); see also

Bordentown, 903 F.3d at 269 n.22 (recognizing that

whether State “schemes . . . create a single or unitary

proceeding” is probative in determining finality)

(emphasis added). “[T]he [Natural Gas Act] does not

preempt the regular progression of intra-agency

review of a permitting decision.” Bordentown, 903 F.3d

at 271 (emphasis added). Thus, the question is not

simply, as Petitioners contend, “whether the proceeding

is one before an administrative agency,” see Pet. at 24,

but instead whether the proceeding is part of a unitary,

intra-agency review. See id.

In Pennsylvania, a separate agency – the

Environmental Hearing Board – ordinarily conducts

the review of PADEP’s permitting decisions in a

lengthy quasi-judicial proceeding. “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.” Delaware

Riverkeeper Network, 903 F.3d at 73, App. 15 (quoting

Berkshire, 851 F.3d at 112). “Quite the opposite.

[PADEP] and the [Environmental Hearing] Board are

entirely independent agencies. Each conducts a

separate proceeding, under separate rules, overseen by

separately appointed officers.” Id.; see also id. at 72,

App. 13 (“The [Environmental Hearing Board] is wholly

separate from PADEP. The Board is an ‘independent

quasi-judicial agency,’ 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.”) (citations omitted). “Both

in formal terms, 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 [PADEP] to do other than await the

conclusion of any proceedings before the Board.” Id. at

73, App. 15 (citations omitted).

In Bordentown, the Third Circuit held that “the

petitioners were entitled under New Jersey law to have

alternatively first sought an intra-agency adjudicative

hearing.” Bordentown, 903 F.3d at 271 (emphasis

added); see also id. at 271 n.24 (focusing analysis on

whether the administrative review was within “the

agency charged with administering the permitting

process”). There is no inconsistency in the Third

Circuit’s rulings. The different outcomes are explained

by the fact that, in the case below, review of PADEP’s

permitting decision would be conducted by a separate

agency (the Environmental Hearing Board), which is

not charged with administering the permitting

process,11 in a separate, quasi-judicial proceeding,

whereas in Bordentown, the administrative review

would occur within “an intra-agency adjudicative

hearing.” Bordentown, 903 F.3d at 271 (emphasis

added).

See Tenn. Gas, 921 F. Supp. 2d at 390; see also Del. Riverkeeper

Network, 903 F.3d at 69, App. 6.

4. The Record on Appeal to Federal

Courts of Appeals Is Sufficient.

Review of the Water Quality Certification before the

Environmental Hearing Board is not necessary to

develop a record for review. See Camp v. Pitts, 411

U.S. 138, 142 (1973) (“[T]he focal point for judicial

review should be the administrative record already in

existence, not some new record made initially in the

reviewing court.”); Fla. Power & Light Co. v. Lorion,

470 U.S. 729, 743-44 (1985) (“The task of the reviewing

court is to apply the appropriate APA standard of

review . . . to the agency decision based on the record

the agency presents to the reviewing court.”). The

Third Circuit had before it a robust record from PADEP

– the record upon which the Water Quality

Certification was issued – that consisted of more than

22,000 pages of material, including Transco’s

application, technical correspondence, comments from

interested persons (including Riverkeeper), and

responses to those comments from Transco and

PADEP, among other things.12 Further, the record

before FERC is considered part of the record upon

appeal. See 18 C.F.R. §§ 385.2014(b), (c). Here, the

record was sufficient for review.

Petitioners rely on Murphy in support of their

argument that State review processes are essential to

developing a sufficient record for review, but their

Petitioners had access to Transco’s application and a full

opportunity to submit comments. PADEP published public notice

of Transco’s application on June 20, 2015 and requested public

comments. See 45 Pa. Bull. 3274 (June 20, 2015).

reliance on Murphy is misplaced. The Murphy court

considered a variety of factors – the development of the

record among them – to determine whether it should

apply a finality requirement as part of its ripeness

determination. Murphy, 402 F.3d at 352. The court

concluded that it should apply a finality requirement

and that the plaintiffs “may not proceed in federal

court until they have obtained a final, definitive

position from local authorities as to how their property

may be used.” Id. Murphy’s ruling is consistent with

the ruling below; indeed, the Murphy court used the

same federal test for determining finality. Here,

PADEP did issue a final, definitive position in issuing

the Water Quality Certification, so it was appropriate

for the challenges to proceed in federal court under the

exclusive jurisdiction provisions of the Natural Gas

Act.

Petitioners’ emphasis on the Environmental

Hearing Board’s de novo review of PADEP’s decision to

issue the Water Quality Certification also is misplaced.

As the Third Circuit explained in the decision below,

the First Circuit in Berkshire “did not rely on the fact

of de novo review for its own sake in finding the

agency’s initial decision non-final.” Del. Riverkeeper

Network, 903 F.3d at 73 n.3, App. 16. Instead, the

Berkshire court “concluded that the decision was nonfinal 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.’” Id. (quoting Berkshire, 851 F.3d

at 112). Critically, “[t]he same cannot be said of review

by the [Environmental Hearing Board] in

Pennsylvania, which takes place after a decision that

has immediate legal effect.” Id.

It bears emphasis that self-executing waivers of

PADEP’s authority under Section 401 of the Clean

Water Act would be virtually guaranteed if Petitioners

were correct that a Water Quality Certification is not

final until the Environmental Hearing Board has an

opportunity to review it.

There is no realistic

possibility that PADEP could review an application,

issue a Water Quality Certification, and then have

Environmental Hearing Board review (complete with

discovery, hearings, post-hearing submissions, and a

written decision) within the Clean Water Act’s

maximum one-year deadline for Section 401 Water

Quality Certifications. See 33 U.S.C. § 1341(a)(1) (a

State waives the certification requirement if it does not

act on applications for Water Quality Certifications

“within a reasonable period of time (which shall not

exceed one year)”); Hoopa Valley Tribe v. FERC, 913

F.3d 1099, 1103-04 (D.C. Cir. 2019) (explaining that

the “temporal element” under Section 401 is “within a

reasonable period of time,” and “[t]hus, while a full

year is the absolute maximum, it does not preclude a

finding of waiver prior to the passage of a full year”)

(quotations omitted); see also Solebury Twp. &

Buckingham Twp. v. PADEP, No. 2002-323-L, 2008 WL

5426378, at *6 (Pa. EHB Dec. 23, 2008) (“EHB appeals

have a tendency to grind on for years. Litigation before

the Board can be every bit as complicated as complex

litigation in state or federal court.”).13 Similar concerns

arise under other States’ regimes.

Petitioners mistakenly assert that the Natural Gas

Act’s “agency delay” provision avoids any “concern that

a Board proceeding would cause undue delay to a

Commission jurisdictional Project.” Pet. at 32 n.5. The

D.C. Circuit in Weaver’s Cove – upon which Petitioners

rely – held that an applicant for a Water Quality

Certification lacks standing to sue for “agency delay”

because it cannot demonstrate injury from a State’s

waiver. See Weaver’s Cove Energy, LLC v. Rhode

Island Dep’t of Envtl. Mgmt., 524 F.3d 1330, 1333 (D.C.

Cir. 2008) (“[The applicant’s] claim is that the States

have waived their right to deny a

certification. . . . Logically, a petitioner cannot

challenge an action as ‘an invasion of a legally

protected interest’ and simultaneously contend the

action is of no legal significance.”). The D.C. Circuit

reaffirmed this holding in Millennium Pipeline Co. v.

Seggos, 860 F.3d 696 (D.C. Cir. 2017), where the court

held that an applicant for a Water Quality Certification

“suffer[s] no cognizable injury from the violation” of

“the Clean Water Act’s statutory deadline” and

dismissed a petition for review “for want of standing.”

Id. at 699-700. As the D.C. Circuit explained, “[o]nce

The First Circuit in Berkshire recognized the waiver issue but

did not reach it. See Berkshire, 851 F.3d at 113 n.1 (“Our

consideration of the jurisdictional issue posed by this case leaves

us with no occasion to consider whether, because MassDEP did not

finally act on Tennessee Gas’s application within one year, the

requirement that Tennessee Gas obtain a water quality

certification from the Commonwealth of Massachusetts has been

waived.”).

the Clean Water Act’s requirements have been waived,

the Act falls out of the equation. As a result, if the

[State agency] has delayed for more than a year . . . the

delay cannot injure [the applicant].” Id. at 700

(citation omitted). The Natural Gas Act’s “agency

delay” provision applies only “when, unlike with the

Clean Water Act, there is no built-in remedy for state

inaction already in place.” Id. at 701.

5. The Decision Below Presents No

Threat to Petitioners’ Due Process

Rights.

Petitioners’ argument that review before the

Environmental Hearing Board is essential to protecting

their due process rights is meritless when, as here, a

federal statute provides the process they are due. In

the Natural Gas Act, Congress determined that the

review of federal authorizations issued by State

agencies for interstate natural gas pipelines will occur

in the federal Courts of Appeals. See 15 U.S.C.

§ 717r(d)(1). In this context, Petitioners receive due

process in the Court of Appeals, rather than before the

Environmental Hearing Board.

Petitioners cite several decisions as support for

their argument that the opportunity for Environmental

Hearing Board review is essential to providing due

process, but none of those decisions involved permits

issued for interstate natural gas pipelines governed by

the Natural Gas Act, for which federal court review is

available. See Pet. at 27-28. Unlike those cases, here

the Natural Gas Act provides the exclusive process for

review of PADEP’s decision to issue a Section 401

Water Quality Certification for the Project.

Petitioners contend that due process requires they

“have an opportunity to present evidence at a hearing

before the [Environmental Hearing Board],” but “[t]he

essence of due process is notice and an opportunity to

be heard,” and “does not entitle Petitioners to a de novo

evidentiary hearing; the opportunity to comment and

to petition [the Court of Appeals] for review is enough.”

Del. Riverkeeper Network, 903 F.3d at 74, App. 17.

“[W]ith 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.’” Id. (quoting

Bank of N. Shore v. Fed. Deposit Ins. Corp., 743 F.2d

1178, 1184 (7th Cir. 1984)).

Petitioners’ arguments regarding their due process

rights with respect to the National Pollutant Discharge

Elimination System (“NPDES”) permit for hydrostatictest water discharges are misplaced here.14 The

decision below concerned the Clean Water Act Section

401 Water Quality Certification – not any of the other

permits the Water Quality Certification required

Transco to obtain. Each of those other permits –

including the NPDES permit for hydrostatic test

discharges – are separate authorizations and

separately appealable under the Natural Gas Act, 15

Hydrostatic testing refers to the use of clean water to test the

hydraulic and structural integrity of pipelines under expected

pressures that will exist when used for the transportation of

natural gas. Upon completion of the test, the clean water is

drained from the pipeline pursuant to established monitoring and

effluent requirements.

U.S.C. § 717r(d)(1), as Petitioners admit. See Pet. at

29.

In fact, Riverkeeper filed in the Third Circuit a

separate petition for review of PADEP’s approval of

Transco’s request for coverage under an NPDES

general permit for the hydrostatic test discharges. The

petition remains pending before the Third Circuit as

case number 17-3299.

As a result, Petitioners’

arguments concerning the NPDES permit are improper

not only because they involve an authorization distinct

from the Water Quality Certification at issue here, but

also because the Third Circuit has not yet issued a

decision in the pending appeal.15

B. The Decision Below Does Not Violate

the Tenth Amendment.

Petitioners waived their belated Tenth Amendment

challenge by failing to press it below. The Third

Circuit had no occasion to address the Tenth

Amendment in its decision. Nevertheless, even if

Petitioners had preserved their Tenth Amendment

challenge, it would fail under this Court’s precedent

In any event, Riverkeeper’s due process challenge concerning the

NPDES has no merit. Among other things, federal law provides

that the opportunity for judicial review of State permitting

decisions is sufficient to provide for, encourage, and assist public

participation in the NPDES permitting process. 40 C.F.R.

§ 123.30; see also 33 U.S.C. § 1369(b)(1) (noting that when the

United States Environmental Protection Agency issues or denies

an NPDES permit, that action may only be appealed to the Circuit

Court of Appeals of the United States for the Federal judicial

district in which the petitioner resides or transacts business)

(emphasis added).

because (1) the decision below does not dictate what the

Commonwealth of Pennsylvania’s legislature must or

must not do, and (2) the Commonwealth voluntarily

chooses to participate in the scheme of cooperative

federalism involved here.

1. Petitioners Waived Their

Amendment Challenge.

Tenth

As with their new exhaustion argument, Petitioners

did not advance a Tenth Amendment challenge before

the Third Circuit, and the Third Circuit did not address

the Tenth Amendment in its opinion below.16 The

Court should decline to consider Petitioners’ new Tenth

Amendment challenge attacking the judgment below,

which was neither pressed by Petitioners nor passed

upon by the Third Circuit. See United Foods, Inc., 533

U.S. at 417.

Petitioners’ sole reference to the Tenth Amendment in the

proceedings below occurred during oral argument when

Petitioners’ counsel stated: “I know that at least one

Environmental Hearing Board judge has raised the issue of the

10th Amendment, about whether or not the 10th Amendment

would preclude the cut-off of both EHB and the [state] appellate

process.” Tr. of Oral Arg. at 26, Del. Riverkeeper Network v. Sec’y

Pa. Dep’t of Envtl. Prot., Nos. 16-2211, 16-2212, 16-2218, 16-2400

(3d Cir. Nov. 7, 2017). Petitioners expressly declined to press this

Tenth Amendment argument, however, by “conced[ing] for the

purpose of this argument that” any appeal from an Environmental

Hearing Board decision “would go directly to [the Third Circuit]

and not the [Pennsylvania] [C]ommonwealth [C]ourt,” to the

extent the Third Circuit determined that the Environmental

Hearing Board had jurisdiction to hear their appeals in the first

instance (which the Third Circuit did not). Id.

2. This Court’s Decisions in Murphy and

Hodel Demonstrate That the Decision

Below Does Not Violate the Tenth

Amendment.

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

138 S. Ct. 1461, 1479 (2018), Petitioners incorrectly

argue that the Third Circuit’s decision commandeers

“Pennsylvania’s legislative and administrative

processes,” by “forcing the Commonwealth to legislate

its administrative scheme to conform to the structure

preferred by the Third Circuit.” Pet. at 33. Petitioners

assert that “[i]f the Commonwealth wants its preferred

scheme for review of [PADEP] actions and its definition

of finality to be respected, the Commonwealth will be

required to dissolve the Board and move its functions

back within [PADEP],” and claim “[t]his is

unconstitutional.” Pet. at 33-34.

This Court’s decision in Murphy provides no support

for Petitioners’ argument. As the Court explained in

Murphy, “[t]he anticommandeering doctrine . . . is

simply the expression of a fundamental structural

decision incorporated into the Constitution, i.e., the

decision to withhold from Congress the power to issue

orders directly to the States.” Murphy, 138 S. Ct. at

1475.

The statute at issue in Murphy – the

Professional and Amateur Sports Protection Act –

generally made “it unlawful for a State to authorize

sports gambling schemes.” Id. at 1468 (quotations

omitted). The Court held that the statute’s provision

“prohibiting state authorization of sports gambling

. . . violates the anticommandeering rule” because it

“unequivocally dictates what a state legislature may

and may not do.” Id. at 1478. As the Court explained,

“[i]t is as if federal officers were installed in state

legislative chambers and were armed with the

authority to stop legislators from voting on any

offending proposals. A more direct affront to state

sovereignty is not easy to imagine.” Id.; compare New

York v. United States, 505 U.S. 144, 175-76 (1992)

(holding unconstitutional a federal law that required a

State, under certain circumstances, either to take title

to low-level radioactive waste or to regulate according

to the instructions of Congress).

This case bears no resemblance to Murphy or any

case in which the Court has found a violation of the

anticommandeering doctrine. Petitioners claim that if

the Commonwealth of Pennsylvania wishes to retain

Environmental Hearing Board review for projects

governed by the Natural Gas Act, the Commonwealth

would need to amend its statutes to make the

Environmental Hearing Board part of PADEP so that

the same agency both issues and reviews permitting

decisions. Even if Petitioners were correct, that does

not constitute a violation of the Tenth Amendment.

The Third Circuit’s jurisdictional ruling does not order

the Commonwealth to do anything. It neither dictates

what the Commonwealth must legislate nor what it

must not legislate. Indeed, the Commonwealth need

not take any action at all in response to the Third

Circuit’s decision and remains free to legislate as it

sees fit.

Additionally, this Court in Murphy explained that

federal laws “involv[ing] what has been called

‘cooperative federalism,’ by no means commandeer[]

the state legislative process.” Murphy, 138 S. Ct. at

1479 (citing Hodel v. Va. Surface Mining &

Reclamation Ass’n, Inc., 452 U.S. 264, 289 (1981)). In

Hodel, “Congress enacted a statute that

comprehensively regulated surface coal mining and

offered States the choice of” participating in the federal

regulation. Id. “Thus, the federal law allowed but did

not require the States to implement a federal program.”

Id. (emphasis in original).

The same is true here. “By enacting the [Clean

Water Act], Congress provided states with an offer of

shared regulatory authority.” Islander, 482 F.3d at 92

(citing Arkansas v. Oklahoma, 503 U.S. 91, 101 (1992)

(stating that “[t]he Clean Water Act anticipates a

partnership between the States and the Federal

Government, animated by a shared objective”)). The

Clean Water Act sets forth a scheme of “cooperative

federalism” by allowing States to participate in the

regulation of certain activities that may affect the

navigable waters, but their participation is a voluntary

choice, and the Natural Gas Act governs the procedures

for review of all permitting decisions related to

interstate natural gas pipelines.17 See Delaware

A State’s role under Section 401 of the Clean Water Act is

limited to reviewing projects for compliance with the State’s

federally-approved water quality standards. See 33 U.S.C.

§ 1341(a)(1); Millennium Pipeline Co. v. Seggos, 288 F. Supp. 3d

530, 535 (N.D.N.Y. 2017) (“In reviewing applications for Section

401 certification, states may apply their own EPA-approved state

water quality standards.”); see also Niagara Mohawk Power Corp.

v. N.Y. State Dep’t of Envtl. Conservation, 624 N.E.2d 146, 149

(N.Y. 1993) (“Section 401 of the Clean Water Act . . . serves as the

conduit for the incorporation of relevant State water quality

Riverkeeper, 833 F.3d at 376 (“[A] state participates in

Clean Water Act regulation of interstate natural gas

facilities by congressional permission, rather than

through inherent state authority.”); City of Tacoma v.

Taxpayers of Tacoma, 357 U.S. 320, 334 (1958) (“[T]he

Federal Government under the Commerce Clause of

the Constitution (Art. I, § 8, cl. 3) has dominion, to the

exclusion of the States, over navigable waters of the

United States.”); 15 U.S.C. § 717r(d)(1) (federal Courts

of Appeals have “original and exclusive jurisdiction” to

review permits for interstate gas pipelines issued by

“State administrative agenc[ies] acting pursuant to

Federal law,” including Clean Water Act Section 401

Water Quality Certifications). Where States have a

choice in whether to participate, there is no

commandeering and no Tenth Amendment violation.

See Hodel, 452 U.S. at 290 (“We fail to see why the

Surface Mining Act should become constitutionally

suspect simply because Congress chose to allow the

States a regulatory role.”); Islander, 482 F.3d at 93

(“Congress has the authority to regulate discharges

into navigable waters under the Commerce Clause, and

the State . . . exercises only such authority as has been

delegated by Congress. Accordingly, there is no basis

for Respondent’s Tenth Amendment challenge . . . .”).

standards in this otherwise Federally filled universe.”), cert.

denied, 511 U.S. 1141 (1994). The general provisions of

Pennsylvania administrative law Petitioners seek to enforce over

the Natural Gas Act’s exclusive review provisions are not federallyapproved water quality standards.

CONCLUSION

For each of the foregoing reasons, the Court should

deny the petition.

Respectfully submitted,

ELIZABETH U. WITMER

SAUL EWING ARNSTEIN

& LEHR LLP

1200 Liberty Ridge Drive

Suite 200

Wayne, PA 19087

ANDREW T. BOCKIS

SAUL EWING ARNSTEIN

& LEHR LLP

2 N. 2nd Street

7th Floor

Harrisburg, PA 17101

JOHN F. STOVIAK

Counsel of Record

PATRICK F. NUGENT

SAUL EWING ARNSTEIN

& LEHR LLP

Centre Square West

1500 Market Street

38th Floor

Philadelphia, PA 19102

(215) 972-1095

John.Stoviak@saul.com

PAMELA S. GOODWIN

SAUL EWING ARNSTEIN

& LEHR LLP

650 College Road East

Suite 4000

Princeton, NJ 08540

Counsel for Respondent Transcontinental Gas Pipe

Line Company, LLC

March 27, 2019

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.