Del. Riverkeeper Network v. Sec'y Pa. Dep't of Envtl. Prot., No. 15-2122

• Court: United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
• Writing for the Court: ROTH, Circuit Judge
• Citation: 833 F.3d 360
• Parties: Delaware Riverkeeper Network; Maya van Rossum, the Delaware Riverkeeper, Petitioners v. Secretary Pennsylvania Department of Environmental Protection; Pennsylvania Department of Environmental Protection, Respondents Transcontinental Gas Pipe Line Corp, Intervenor Respondent. New Jersey Conservation Foundation; Stony Brook Millstone Watershed Association; Friends of Princeton Open Space, Petitioners v. New Jersey Department Of Environmental Protection ; Transcontinental Gas Pipe Line Corp, Respondents.
• Docket Number: No. 15-2122, No. 15-2158
• Decision Date: 08 August 2016

833 F.3d 360

Delaware Riverkeeper Network; Maya van Rossum, the Delaware Riverkeeper, Petitioners
v.
Secretary Pennsylvania Department of Environmental Protection; Pennsylvania Department of Environmental Protection, Respondents

Transcontinental Gas Pipe Line Corp, Intervenor Respondent.

New Jersey Conservation Foundation; Stony Brook Millstone Watershed Association; Friends of Princeton Open Space, Petitioners
v.
New Jersey Department Of Environmental Protection ; Transcontinental Gas Pipe Line Corp, Respondents.

No. 15-2122
No. 15-2158

United States Court of Appeals, Third Circuit.

Argued on October 29, 2015
Opinion filed: August 8, 2016

Aaron J. Stemplewicz, (Argued), Delaware Riverkeeper Network, 925 Canal Street, Suite 3701, Bristol, PA 19007, Counsel for Petitioners Delaware, Riverkeeper Network and Maya Van Rossum

Katherine V. Dresdner, 299 Pennington–Titusville Road, Pennington, NJ 08534, Aaron Kleinbaum, Esquire, Eastern Environmental Law Center, 744 Broad Street, Suite 1525, Newark, NJ 07102, Susan J. Kraham, Edward Lloyd, (Argued), Columbia University School of Law, 435 West 116th Street, New York, NY 10027, Counsel for Petitioners New Jersey, Conservation Foundation, Stony Brook Millstone Watershed, Association and Friends of Princeton Open Space

Joseph S. Cigan, III, (Argued), Commonwealth of Pennsylvania, Department of Environmental Protection, 2 Public Square, Wilkes–Barre, PA 1870, Kimberly Hummel Childe, Office of Attorney General of Pennsylvania, Department of Environmental Resources, P.O. Box 8464, Harrisburg, PA 17105, Margaret O. Murphy, Pennsylvania Department of Environmental Protection, 400 Market Street, P.O. Box 8469, Harrisburg, PA 17105, Curtis C. Sullivan, Department of Environmental Protection, 909 Elmerton Avenue, Harrisburg, PA 17110, Counsel for Respondents Secretary, Pennsylvania Department of Environmental Protection and Pennsylvania Department of Environmental Protection

Pamela S. Goodwin, Patrick F. Nugent John F. Stoviak, (Argued), Saul Ewing, 1500 Market Street, Centre Square West, 38h Floor, Philadelphia, PA 19102, Elizabeth U. Witmer, Saul Ewing, 1200 Liberty Ridge Drive, Suite 200, Wayne, PA 19087,

833 F.3d 367

Counsel for Intervenor Respondent, Transcontinental Gas Pipe Line Corp

Mark A. Collier, John E. Doyle, Timothy P. Malone, Lewin J. Weyl (Argued), Office of the Attorney General of New Jersey, Department of Law & Public Safety, Richard J. Hughes Justice Complex, 25 Market Street, P.O. Box 093, Trenton, NJ 08625, Counsel for Respondent New Jersey, Department of Environmental Protection

Michael K. Rutter, Heather N. Oehlmann Christine A. Roy, (Argued), Richard G. Scott, Watson, Stevens, Rutter & Roy, 3 Paragon Way, Suite 300, Freehold, NJ 07728, Counsel for Respondent, Transcontinental Gas Pipe Line Corp

Before: GREENAWAY, JR., SCIRICA and ROTH, Circuit Judges

OPINION

ROTH, Circuit Judge:

In this appeal, we are called upon to review water quality-related permitting actions by New Jersey and Pennsylvania for a project by Transcontinental Gas Pipe Line Company, LLC (Transco), which operates the Transcontinental pipeline, a 10,000-mile pipeline that extends from South Texas to New York City. Transco sought federal approval to expand a portion of the pipeline, called the Leidy Line, which connects gas wells in Central Pennsylvania with the main pipeline. Pursuant to the Clean Water Act, the Pennsylvania and New Jersey Departments of Environmental Protection (PADEP and NJDEP, respectively) reviewed Transco's proposal for potential water quality impacts and issued permits for construction. The New Jersey Conservation Foundation, Stony Brook-Millstone Watershed Association, and Friends of Princeton Open Space (collectively, the Foundation) petitioned this Court for review of NJDEP's decision to issue these permits. In a separate petition to this Court, the Delaware Riverkeeper Network and Maya van Rossum (collectively, the Riverkeeper) challenged PADEP's issuance of a Water Quality Certification required under Section 401 of the Clean Water Act. The petitions were consolidated for review.

For the reasons that follow, we conclude this Court has jurisdiction to hear these petitions, and NJDEP and PADEP did not act arbitrarily or capriciously in issuing the permits. Therefore, we will deny the petitions.

I. Statutory Background

Under the Natural Gas Act of 1938,¹ the Federal Energy Regulatory Commission (FERC) has exclusive authority to regulate sales and transportation of natural gas in interstate commerce. Section 7 of the Natural Gas Act grants FERC the power to authorize the construction and operation of interstate transportation facilities.² Specifically, no company or person may construct or extend any facilities for the transportation in interstate commerce of natural gas without obtaining a “certificate of public convenience and necessity” from FERC.³ FERC determines whether a project serves “public convenience and necessity” by reviewing a number of factors, such as the project's impact on competition for the transportation of natural gas, the possibility of overbuilding or subsidization by existing customers, avoidance of unnecessary disruptions to the environment, the applicant's responsibility for unsubscribed capacity, and the avoidance of unnecessary

833 F.3d 368

exercise of eminent domain.⁴ The issuance of a “certificate of public convenience and necessity” is conditioned on receipt of state and other federal authorizations required for the proposed project.⁵

Other federal authorizations may be required because interstate sales and transmission of natural gas are further regulated through federal environmental laws, including the National Environmental Policy Act (NEPA)⁶ and the Clean Water Act.⁷ To comply with NEPA, before issuing a certificate of public convenience or necessity, FERC must examine the potential environmental impact of a proposed pipeline project and issue an Environmental Assessment or, if necessary, an Environmental Impact Statement.⁸

Although the Natural Gas Act preempts state environmental regulation of interstate natural gas facilities, the Natural Gas Act allows states to participate in environmental regulation of these facilities under three federal statutes: the Clean Air Act, the Coastal Zone Management Act, and the Clean Water Act.⁹ As relevant here, the Clean Water Act regulates through a combination of state and federal mechanisms: the U.S. Environmental Protection Agency (EPA) limits the discharge of pollutants into water bodies,¹⁰ and states establish water quality standards, subject to EPA approval, that must at a minimum comply with EPA's limits.¹¹

This combination of state and federal mechanisms is apparent when a proposed activity involves discharge of dredged or fill material into the navigable waters of the United States and thus triggers the permitting requirements of Section 404 of the Clean Water Act.¹² Section 404 permits typically are issued by the U.S. Army Corps of Engineers; however, a state may assume the authority to administer these permits. Whether or not the state assumes this authority, a Section 404 permit may be issued only if the state where the discharge will occur issues a Water Quality Certification, governed by Section 401 of the Clean Water Act.¹³ A Water Quality Certification confirms that a given facility will comply with federal discharge limitations and state water quality standards.¹⁴ Unlike the Section 404 permit, the Water Quality Certification is by default a state permit, and the issuance and review of a Water Quality Certification is typically left to the states.¹⁵

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New Jersey has assumed authority to issue Section 404 permits and delegated administration of the permitting program to NJDEP, which exercises this authority pursuant to the New Jersey Freshwater Wetlands Protection Act.¹⁶ Therefore, for activities that result in discharge of dredged or fill material into New Jersey waters, NJDEP reviews applications for Water Quality Certifications and Section 404 permits. In contrast, Pennsylvania has not assumed Section 404 permitting authority. For activities affecting Pennsylvania waters, Section 404 permits are issued by the U.S. Army Corps of Engineers, and Water Quality Certifications are issued by PADEP.

II. Administrative Background

In September 2013, Transco submitted an application to FERC for a certificate of public convenience and necessity for the Leidy Southeast Expansion Project. The Project consists of two major types of improvements to existing natural gas pipelines: the construction of four new pipeline “loops” and the upgrade of turbines at four compressor stations. “Loops” are sections of pipe connected to the main pipeline system that reduce the loss of gas pressure and increase the flow efficiency of the system. Compressor stations serve a similar function, using gas- and electric-powered turbines to increase the pressure and rate of flow at given points along the pipeline's route. In its application, Transco proposed installing, within or parallel to existing Transco pipelines, approximately thirty miles of loops. The Skillman Loop and the Pleasant Run Loop, totaling 13.23 miles, would be located...