Del. Riverkeeper Network v. Sec'y of the Pa. Dep't of Envtl. Prot.

• Decision Date: 30 August 2017
• Docket Number: No. 17-1533.,17-1533.
• Citation: 870 F.3d 171
• Parties: DELAWARE RIVERKEEPER NETWORK; Maya Van Rossum, the Delaware Riverkeeper, Petitioners v. SECRETARY OF the PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; Pennsylvania Department of Environmental Protection, Respondents Tennessee Gas Pipeline Co., Intervenor
• Court: U.S. Court of Appeals — Third Circuit

870 F.3d 171

DELAWARE RIVERKEEPER NETWORK; Maya Van Rossum, the Delaware Riverkeeper, Petitioners

v. SECRETARY OF the PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; Pennsylvania Department of Environmental Protection, RespondentsTennessee Gas Pipeline Co., Intervenor

No. 17-1533.

United States Court of Appeals, Third Circuit.

Argued July 13, 2017

Filed: August 30, 2017

Aaron J. Stemplewicz [ARGUED], Delaware Riverkeeper Network, 925 Canal Street, Suite 3701, Bristol, PA 19007, Counsel for Petitioners

Alexandra C. Chiaruttini, Joseph S. Cigan III [ARGUED], Commonwealth of Pennsylvania, Department of Environmental Protection, 2 Public Square, Wilkes-Barre, PA 18701, Kimberly Hummel Childe, Office of Attorney General of Pennsylvania, Department of Environmental Resources, 9th Floor, P.O. Box 8464, Harrisburg, PA 17105, Counsel for Respondents

Pamela S. Goodwin, Saul Ewing, 650 College Road East, Suite 4000, Princeton, NJ 08540, Patrick F. Nugent, John F. Stoviak [ARGUED], Saul Ewing, 1500 Market Street, Centre Square West, 38th Floor, Philadelphia, PA 19102, Elizabeth U. Witmer, Saul Ewing, 1200 Liberty Ridge Drive, Suite 200, Wayne, PA 19087, Counsel for Intervenor Respondent

Before: SMITH, Chief Judge, NYGAARD, and FUENTES, Circuit Judges

OPINION OF THE COURT

SMITH, Chief Judge.

Tennessee Gas Pipeline Co. ("Tennessee Gas") submitted applications to several federal and state agencies seeking approval to build an interstate pipeline project. One such agency is the Pennsylvania Department of Environmental Protection ("PADEP"),¹ which issued a permit approving the project. The petitioners, Maya van Rossum and Delaware Riverkeeper Network (collectively, "Riverkeeper"), argue that we lack jurisdiction to rule on its petition because PADEP's order was not final. As to the merits, Riverkeeper challenges PADEP's decision on the grounds that the agency made an erroneous "water dependency" finding and improperly rejected a "compression" alternative to the pipeline project.

We will exercise jurisdiction because PADEP's decision was final. We will also uphold PADEP's decision on the merits because the agency's unique interpretation of water dependency is reasonable and worthy of deference. Furthermore, the agency considered and rejected the compression alternative for reasons that are supported by the record. We will therefore deny the petition for review.

I

At issue is the so-called Orion Project—12.9 miles of pipeline looping that would transport 135,000 dekatherms of natural gas per day via Pennsylvania. Approximately 99.5% of the new pipeline would run alongside existing pipelines.

Full background information on the Orion Project is provided in a companion case, Delaware Riverkeeper Network v. U.S. Army Corps of Engineers , No. 17-1506, 869 F.3d 148, 2017 WL 3611780 (3d Cir. 2017). For purposes of this opinion, we will focus on the aspects of the state administrative procedures at issue here.

Under the Natural Gas Act of 1938, the Federal Energy Regulatory Commission ("FERC") is the "lead agency" for evaluating interstate pipeline projects. 15 U.S.C. § 717n(b). As a condition of FERC approval, the applicant is required to obtain any other state or federal licenses required by law. One such license is called a Water Quality Certification governed by Section 401 of the Clean Water Act. 33 U.S.C. § 1341. "A Water Quality Certification confirms that a given facility will comply with federal discharge limitations and state water quality standards." Del. Riverkeeper Network v. Sec'y Pa. Dep't of Envtl. Prot. , 833 F.3d 360, 368 (3d Cir. 2016), as amended (March 24, 2017). "For activities affecting Pennsylvania waters, ... Water Quality Certifications are issued by PADEP." Id. at 369.

As a condition of obtaining a Water Quality Certification, PADEP requires applicants to obtain other state permits, including a Water Obstruction and Encroachment Permit issued under Pennsylvania's Dam Safety and Encroachment Act and its implementing regulations, 25 Pa. Code Ch. 105. Those permits are commonly referred to as "Chapter 105 permits."

Chapter 105 gives special protection to "exceptional value" wetlands. Wetlands are considered to have exceptional value if, inter alia , they are located along a drinking water supply or serve as habitat for endangered species. See 25 Pa. Code § 105.17(1). It is undisputed that the Orion Project would affect ten exceptional-value wetlands in Pike County and three in Wayne County.

PADEP cannot issue a Chapter 105 permit for a project affecting exceptional-value wetlands unless it certifies in writing that seven requirements are met. 25 Pa. Code § 105.18a. Two are relevant here:

(2) The project is water-dependent. A project is water-dependent when the project requires access or proximity to or siting within the wetland to fulfill the basic purposes of the project.

(3) There is no practicable alternative to the proposed project that would not involve a wetland or that would have less effect on the wetland, and not have other significant adverse effects on the environment.

Id. § 105.18a(a)(2)–(3).

On September 20, 2016, PADEP issued a conditional Water Quality Certification for the Orion Project. Then, on February 23, 2017, PADEP issued two Chapter 105 permits approving the Orion Project's stream and wetland crossings—Permit Nos. E52-253 (Pike County) and E64-305 (Wayne County). In doing so, PADEP certified that the Orion Project "[i]s water dependent" and would be "the least environmentally damaging alternative." JA 49, 180.

On March 10, 2017, Riverkeeper filed this petition for review. We granted Tennessee Gas's motion to intervene on March 17, 2017. Riverkeeper filed a motion for an emergency stay, which this Court denied on April 7, 2017. Riverkeeper then filed a motion to expedite the case. We granted that motion on May 8, 2017.

II

The parties ask us to resolve two jurisdictional issues: (1) whether we may review nonfinal administrative orders under the Natural Gas Act; and (2) whether the petition was timely filed. We need not reach the first question. The agency decision at issue is final, and therefore jurisdiction would be proper under either interpretation of the Natural Gas Act. As for the second question, we conclude that the petition was timely filed.

A

First, Riverkeeper argues that we lack jurisdiction because we may only review final orders, and PADEP's order is not final until it has been reviewed by a separate administrative entity, Pennsylvania's Environmental Hearing Board. Riverkeeper asks us to transfer the case to the Board.² We conclude that jurisdiction is proper because PADEP's order is final.

Our jurisdiction is controlled by Section 19(d) of the Natural Gas Act, as amended in 2005. Where an interstate pipeline project is proposed to be constructed, see 15 U.S.C. § 717f, this Court has "original and exclusive jurisdiction over any civil action for the review of an order or action of a ... State administrative agency acting pursuant to Federal law to issue ... any permit, license, concurrence, or approval ... required under Federal law," id. § 717r(d)(1).

In a recent precedential opinion, this Court exercised jurisdiction over a similar PADEP decision involving the "Leidy Line" pipeline project. Del. Riverkeeper , 833 F.3d 360. The petitioner, also Riverkeeper, challenged PADEP's decision to issue a Water Quality Certification. This Court concluded that "the issuance of a Water Quality Certification is not purely a matter of state law" because the certification "is an integral element of the regulatory scheme established by the Clean Water Act." Id. at 371. Thus, PADEP was "acting pursuant to Federal law" within the meaning of the Natural Gas Act. 15 U.S.C. § 717r(d)(1). We also exercised jurisdiction over various permits issued by the New Jersey Department of Environmental Protection, even though some permits were "governed by state law rather than the Clean Water Act." Del. Riverkeeper , 833 F.3d at 374. Because those state-law permits were, "in effect, a set of conditions" on obtaining approval under the Clean Water Act, id. (citing 33 U.S.C. § 1341(d) ), they were issued "pursuant to Federal law," 15 U.S.C. § 717r(d)(1). Likewise here, the Chapter 105 permits were conditions of federal approval and therefore were issued "pursuant to Federal law." Id. ; see Del. Riverkeeper , 833 F.3d at 386 ("Because the Chapter 105 Permit was a condition of the Water Quality Certification, it is inextricably intertwined with the Water Quality Certification.").

After the Leidy Line ruling, the First Circuit decided Berkshire Environmental Action Team, Inc. v. Tennessee Gas Pipeline Co., LLC , 851 F.3d 105 (1st Cir. 2017). Berkshire ruled on an issue that was not raised in the Leidy Line case: finality.

First, Berkshire held that § 717r(d)(1) includes an unstated finality requirement. Even though the statute does not use the word "final," the First Circuit read that word into the statute based on the "strong presumption ... that judicial review will be available only when agency action becomes final." Id. at 109 (quoting Bell v. New Jersey , 461 U.S. 773, 778, 103 S.Ct. 2187, 76 L.Ed.2d 312 (1983) ); see also Columbia Riverkeeper v. U.S. Coast Guard , 761 F.3d 1084, 1092 (9th Cir. 2014). But see Tenn. Gas Pipeline Co. LLC v. Del. Riverkeeper Network , 921 F.Supp.2d 381, 391 (M.D. Pa. 2013).³

Second, Berkshire concluded that the particular agency decision at issue was not final. It evaluated "[t]he substance of the Massachusetts regulatory regime," Berkshire , 851 F.3d at 112, and concluded that the applicant (also Tennessee Gas) was required to go through an additional adjudicatory hearing before the agency action would be ripe for review. Berkshire characterized the adjudicatory hearing as a continuation of "a single, unitary proceeding" that had not yet finally concluded. Id.

Although the Leidy Line case was procedurally similar to this one, the finality issue was not presented and remains unresolved in this...