903 F.3d 65 (3rd Cir. 2018), 16-2211, Delaware Riverkeeper Network v. Secretary Pennsylvania Department of Environmental Protection

Docket Nº:16-2211, 16-2212, 16-2218, 16-2400
Citation:903 F.3d 65
Opinion Judge:HARDIMAN, Circuit Judge.
Party Name:DELAWARE RIVERKEEPER NETWORK; Delaware Riverkeeper Maya Van Rossum, Petitioners No. 16-2211 Lancaster Against Pipelines, Petitioner No. 16-2212 v. SECRETARY PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; Pennsylvania Department of Environmental Protection, Respondents Transcontinental Gas Pipe Line Company, LLC, Intervenor Respondent
Attorney:Aaron J. Stemplewicz [Argued], Delaware Riverkeeper Network, Attorney for Petitioners Delaware Riverkeeper Network and Delaware Riverkeeper Maya Van Rossum Mark L. Freed [Argued], Jordan B. Yeager, Curtin & Heefner, Attorneys for Petitioners Lancaster Against Pipelines and Geraldine Nesbitt Diana...
Judge Panel:Before: JORDAN, HARDIMAN, and SCIRICA, Circuit Judges
Case Date:September 04, 2018
Court:United States Courts of Appeals, Court of Appeals for the Third Circuit
 
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903 F.3d 65 (3rd Cir. 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, Intervenor Respondent

Nos. 16-2211, 16-2212, 16-2218, 16-2400

United States Court of Appeals, Third Circuit

September 4, 2018

Argued November 7, 2017

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On Petition for Review of an Order of the Pennsylvania Department of Environmental Protection (FERC No. CP-15-138-000)

Aaron J. Stemplewicz [Argued], Delaware Riverkeeper Network, Attorney for Petitioners Delaware Riverkeeper Network and Delaware Riverkeeper Maya Van Rossum

Mark L. Freed [Argued], Jordan B. Yeager, Curtin & Heefner, Attorneys for Petitioners Lancaster Against Pipelines and Geraldine Nesbitt

Diana A. Csank, Zachary M. Fabish, Sierra Club Environmental Law Program, Attorneys for Petitioner Sierra Club

Alexandra C. Chiaruttini, Margaret O. Murphy, Pennsylvania Department of Environmental Protection, Joseph S. Cigan, III [Argued], Pennsylvania Department of Environmental Protection, Curtis C. Sullivan, Pennsylvania Department of Environmental Protection, Jesse C. Walker, Pennsylvania Office of Attorney General, Department of Environmental Resources, Attorneys for Respondents

Andrew T. Bockis, Saul Ewing Arnstein & Lehr, Pamela S. Goodwin, Saul Ewing Arnstein & Lehr, Patrick F. Nugent, John F. Stoviak [Argued], Saul Ewing Artnstein & Lehr, Elizabeth U. Witmer, Saul Ewing Arnstein & Lehr, Attorneys for Intervenor Respondent

Before: JORDAN, HARDIMAN, and SCIRICA, Circuit Judges

OPINION

HARDIMAN, Circuit Judge.

These consolidated petitions for review concern the Atlantic Sunrise Project, an expansion of the natural-gas 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 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.

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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. § 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;

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

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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 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 non-final 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 notice-and-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.

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

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review to an agency’s ultimate decisions, but there is a "well-settledstrong presumption that judicial review will be available...

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