Clifford Cole, Pamela Brian W. Weirback, Kathy Weirback, Todd Shelly v. Pa. Dep't of Envtl. Prot.

• Decision Date: 15 June 2021
• Docket Number: No. 1577 C.D. 2019,1577 C.D. 2019
• Citation: 257 A.3d 805
• Parties: Clifford COLE, Pamela West, Brian Weirback, Kathy Weirback, Todd Shelly and Christine Shelly, Petitioners v. PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent
• Court: Pennsylvania Commonwealth Court

257 A.3d 805

Clifford COLE, Pamela West, Brian Weirback, Kathy Weirback, Todd Shelly and Christine Shelly, Petitioners

v.PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondent

No. 1577 C.D. 2019

Commonwealth Court of Pennsylvania.

Argued September 16, 2020

Decided June 15, 2021

Michael D. Fiorentino, Media, for Petitioners.

Andrew T. Bockis, Harrisburg, for Intervenor Adelphia Gateway, LLC.

Jessica D. Hunt, Assistant Counsel, Norristown, for Respondent.

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge,¹ HONORABLE RENÉE COHN JUBELIRER, Judge, HONORABLE P. KEVIN BROBSON, Judge, HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H. WOJCIK, Judge, HONORABLE ELLEN CEISLER, Judge, HONORABLE J. ANDREW CROMPTON, Judge

OPINION BY JUDGE BROBSON

I. INTRODUCTION

In April 2019, Respondent Pennsylvania Department of Environmental Protection (DEP) approved the plan of Intervenor Adelphia Gateway, LLC (Adelphia) to construct a natural gas compressor station in West Rockhill Township, Bucks County, Pennsylvania, which the parties refer to as the Quakertown Compressor Station. Petitioners Clifford Cole, Pamela West, Brian Weirback, Kathy Weirback, Todd Shelly, and Christine Shelly filed a timely appeal of DEP's decision with the Pennsylvania Environmental Hearing Board (EHB). The EHB dismissed the appeal, concluding that it lacked subject matter jurisdiction. Petitioners now appeal that dismissal.

We have before us a pure question of law that implicates the subject matter jurisdiction of both the EHB and the United States Court of Appeals for the Third Circuit.² The question, simply stated, is whether Section 19(d)(1) of the federal Natural Gas Act, as amended in 2005, 15 U.S.C. § 717r(d)(1),³ divests the EHB of its subject matter jurisdiction to hear Petitioners’ appeal from DEP's approval of the Quakertown Compressor Station. Section 717r(d)(1), titled "Judicial Review," provides, in relevant part:

The United States Court of Appeals for the circuit in which a facility ... is proposed to be constructed, expanded, or operated shall have original and exclusive jurisdiction over any civil action for the review of an order or action of a Federal agency ... or State administrative agency acting pursuant to Federal law to issue, condition, or deny any permit, license, concurrence, or approval (hereinafter collectively referred to as "permit") required under Federal law , other than the Coastal Zone Management Act of 1972^{[4 ]} ....

(Emphasis added.) Alternatively stated, we must determine whether Section 717r(d)(1) requires that every challenge to a DEP approval issued pursuant to federal law be lodged with the Third Circuit. For the reasons set forth below, we conclude that the EHB erred in dismissing Petitioners’ appeal for lack of subject matter jurisdiction.

II. BACKGROUND

A. The EHB

In Pennsylvania, environmental regulation and enforcement are split between three bodies—(1) DEP, which implements and enforces the laws; (2) the Environmental Quality Board, which serves as the administrative rulemaking body; and (3) the EHB, which serves as the adjudicator of disputed matters. See Tire Jockey Serv., Inc. v. Dep't of Env't Prot. , 591 Pa. 73, 915 A.2d 1165, 1185 (2007). The EHB is not an appellate body with a limited scope of review. To the contrary, in matters challenging DEP action, the EHB conducts a de novo review of evidence produced before the EHB to determine whether DEP's action can be sustained or supported. Pa. Trout v. Dep't of Env't Prot. , 863 A.2d 93, 106 (Pa. Cmwlth. 2004). In proceedings before the EHB, the burden of proof lies with the party protesting the DEP action. Id. at 105.

The General Assembly originally established the EHB in 1971 as an administrative body within DEP (f/k/a the Department of Environmental Resources).⁵ The original purpose of the EHB was to hold hearings and issue adjudications under the Administrative Agency Law (AAL).⁶ Generally speaking, the AAL ensures that those whose "personal or property rights, privileges, immunities, duties, liabilities[,] or obligations" are affected by a state agency action are afforded notice and an opportunity to be heard before a final agency decision is rendered. See 2 Pa. C.S. § 101 (definition of adjudication), § 504 (providing that "[n]o adjudication of a Commonwealth agency shall be valid as to any party unless he shall have been afforded reasonable notice of a hearing and an opportunity to be heard").

In 1988, the General Assembly enacted the Environmental Hearing Board Act (EHB Act),⁷ establishing the EHB as a quasi-judicial agency independent of DEP. Section 3(a) of the EHB Act, 35 P.S. § 7513(a). The role of the EHB as the adjudicator for purposes of compliance with the AAL, however, remained unchanged. Section 4(a) of the EHB Act, 35 P.S. § 7514(a). In addition, the EHB Act, like its predecessor, provides the following with respect to actions by DEP:

[DEP] may take an action initially without regard to [Chapter 5, subchapter A of the AAL], but no action of [DEP] adversely affecting a person shall be final as to that person until the person has had the opportunity to appeal the action to the [EHB] .... If a person has not perfected an appeal in accordance with the regulations of the [EHB], [DEP's] action shall be final as to [that] person.

Section 4(c) of the EHB Act, 35 P.S. § 7514(c) (emphasis added). Adjudications by the EHB are appealable as of right to this Court. Pa. Const. art. V, § 9 ("[T]here shall ... be a right of appeal ... from an administrative agency ... to an appellate court, the selection of such court to be as provided by law."); 42 Pa. C.S. § 763(a)(1) (vesting exclusive appellate jurisdiction in Commonwealth Court over appeals from EHB).

B. Adelphia Plan Approval

The Quakertown Compressor Station is a component of the Adelphia Gateway Project (Project), which involves the purchase, construction, and operation of an interstate natural gas transmission infrastructure between Pennsylvania and Delaware. On January 12, 2018, Adelphia filed an application with the Federal Energy Regulatory Commission (FERC), requesting a Certificate of Public Convenience and Necessity for the Project under Section 7(c) of the Natural Gas Act, 15 U.S.C. § 717f(c).⁸ Adelphia also separately sought plan approval from DEP for the Quakertown Compressor Station, an air contamination source, under the Clean Air Act (CAA)⁹ and Pennsylvania's Air Pollution Control Act (APCA).¹⁰

On April 19, 2019, DEP granted plan approval of the Quakertown Compressor Station, subject to conditions that would have to be met in order for DEP to issue an operating permit. (Reproduced Record (R.R.) 15a-72a.) In the letter transmitting the plan approval, DEP expressly noted that its approval was subject to review by the EHB:

Any person aggrieved by this action may appeal the action to the [EHB], pursuant to Section 4 of the [EHB] Act, 35 P.S. § 7514, and the [AAL] ....

....

Appeals must be filed with the [EHB] within 30 days of receipt of notice of this action unless the appropriate statute provides a different time. This paragraph does not, in and of itself, create any right of appeal beyond that permitted by applicable statutes and decisional law.

....

IF YOU WANT TO CHALLENGE THIS ACTION, YOUR APPEAL MUST BE FILED WITH AND RECEIVED BY THE [EHB] WITHIN 30 DAYS OF RECEIPT OF NOTICE OF THIS ACTION .

(R.R. at 15a-16a (emphasis in original).)

Petitioners filed a timely appeal of the plan approval with the EHB. Adelphia filed a motion to dismiss, arguing that the plan approval was a federally delegated permitting decision associated with a project that falls under the jurisdiction of FERC and the Natural Gas Act, 15 U.S.C. §§ 717 - 717z. For that reason, Adelphia argued that any challenge to the plan approval lies within the original and exclusive jurisdiction of the Third Circuit under Section 717r(d)(1). The EHB, relying on a series of Third Circuit decisions applying Section 717r(d)(1), agreed and dismissed the appeal.

III. DISCUSSION

A. Contentions

Petitioners contend that their appeal to the EHB does not fall within the exclusive jurisdiction afforded to the Third Circuit under Section 717r(d)(1). That statute, Petitioners contend, only vests exclusive jurisdiction in the Third Circuit of civil actions that seek review of DEP actions taken pursuant to federal law to issue a permit required under federal law. Petitioners argue that none of these criteria are met in this case. First, they contend that a statutory appeal to the EHB is not a "civil action," relying on the Third Circuit's decision in Township of Bordentown, New Jersey v. Federal Energy Regulatory Commission , 903 F.3d 234 (3d Cir. 2018). Second, Petitioners contend that the plan approval in this case did not implicate federal law, namely the CAA. Petitioners argue that the source of air pollution in this matter—the proposed Quakertown Compressor Station—did not require an EPA permit under the CAA because it did not qualify as a major source of air pollution. Accordingly, as Adelphia did not require plan approval under the CAA, DEP's action in this matter arose solely under DEP's authority under state law—the APCA. Third, and finally, Petitioners argue that there is no federal law that required Adelphia to secure plan approval in this case.¹¹

In response, DEP contends that DEP's issuance of the plan approval is, itself, a "civil action" under Section 717r(d). It then cites three Third Circuit decisions— Delaware Riverkeeper Network v. Secretary Pennsylvania Department of Environmental Protection , 833 F.3d 360 (3d Cir. 2016) ( Riverkeeper I ); Delaware Riverkeeper Network v. Secretary Pennsylvania Department of Environmental Protection , 903 F.3d 65 (3d Cir. 2018) ( Riverkeeper III ); and Delaware Riverkeeper Network v. Secretary Pennsylvania Department of Environmental Protection , 783 F. App'x 124 (3d Cir. 2019) ( Riverkeeper V )—wherein the Third Circuit determined that it had jurisdiction over challenges to DEP permitting...