Twp. of Bordentown v. Fed. Energy Regulatory Comm'n, No. 17-1047

CourtUnited States Courts of Appeals. United States Court of Appeals (3rd Circuit)
Writing for the CourtCHAGARES, Circuit Judge.
Citation903 F.3d 234
Docket NumberNo. 17-1047, No. 17-3207
Decision Date05 September 2018
Parties TOWNSHIP OF BORDENTOWN, NEW JERSEY; Township of Chesterfield, Petitioners v. FEDERAL ENERGY REGULATORY COMMISSION, Respondent Transcontinental Gas Pipe Line Company, LLC, Intervenor Respondent Township of Bordentown, New Jersey; Township of Chesterfield ; Pinelands Preservation Alliance, Petitioners v. New Jersey Department of Environmental Protection, Respondent Transcontinental Gas Pipe Line Company, LLC, Intervenor Respondent

903 F.3d 234

TOWNSHIP OF BORDENTOWN, NEW JERSEY; Township of Chesterfield, Petitioners
v.
FEDERAL ENERGY REGULATORY COMMISSION, Respondent

Transcontinental Gas Pipe Line Company, LLC, Intervenor Respondent

Township of Bordentown, New Jersey; Township of Chesterfield ; Pinelands Preservation Alliance, Petitioners
v.
New Jersey Department of Environmental Protection, Respondent

Transcontinental Gas Pipe Line Company, LLC, Intervenor Respondent

No. 17-1047
No. 17-3207

United States Court of Appeals, Third Circuit.

Submitted Pursuant to Third Circuit L.A.R. 34.1a June 11, 2018
Filed: September 5, 2018


Jennifer Borek, Lawrence Bluestone, Genova Burns, 494 Broad Street, Newark, NJ 07102, Counsel for Petitioner Township of Bordentown

John C. Gillespie, Parker McCay, 9000 Midlantic Drive, Suite 300, P.O. Box 5054, Mount Laurel, NJ 08054, Counsel for Petitioner Township of Chesterfield

Paul A. Leodori, Todd M. Parisi, Law Offices of Paul Leodori, 61 Union Street, 2nd Floor, Medford, NJ 08055, Counsel for Petitioner Pinelands Preservation Alliance

David L. Morenoff, Robert H. Solomon, Susanna Y. Chu, Ross Fulton, Rekha Sherman, Federal Energy Regulatory Commission, 888 1st Street, N.E., Washington, DC 20426, Counsel for Respondent Federal Energy Regulatory Commission

Gurbir S. Grewal, Jason W. Rockwell, Ryan C. Atkinson, Lewin J. Weyl, Office of Attorney General of New Jersey, 25 Market Street, P.O. Box 116, Trenton, NJ 08625, Counsel for Respondent New Jersey Department of Environmental Protection

Christine A. Roy, Brian B. Keatts, Richard G. Scott, Rutter & Roy, 3 Paragon Way, Suite 300, Freehold, NJ 07728, Counsel for Intervenor Respondent Transcontinental Gas Pipe Line Co LLC

Before: CHAGARES, GREENBERG, and FUENTES, Circuit Judges.

OPINION

CHAGARES, Circuit Judge.

I. Introduction...242

II. Background...243

A. Statutory Background...243

B. Procedural History...244

III. Challenges to FERC’s Orders...246

A. Interpreting the CWA...246

B. NEPA Challenges...248

1. Segmentation of PennEast...248

2. Consideration of the SRL...251

3. Potable Well Impacts...258

C. Need for the Project...261

D. Good Faith Notice...263

E. Green Acres Act...264

F. Cumulative Error...266

IV. Challenges to the NJDEP’s Order...266

A. Jurisdiction Under the NGA...266

B. New Jersey Law...269

V. Conclusion...272

I. Introduction

This consolidated appeal considers a bevy of challenges brought by the Township of Bordentown, Township of Chesterfield,

903 F.3d 243

and Pinelands Preservation Alliance’s ("PPA") (collectively, the "petitioners"), seeking to prevent the expansion of interstate natural gas pipeline facilities operated by the Transcontinental Pipe Line Company, LLC ("Transco").1 The petitioners contend that the Federal Energy Regulatory Commission ("FERC") violated the federal statute governing the approval and construction of interstate pipelines, as well as other generally applicable federal environmental protection statutes, by arbitrarily and capriciously approving Transco’s proposed project. The petitioners further maintain that the New Jersey Department of Environmental Protection ("NJDEP") violated New Jersey law by (1) improperly issuing to Transco various permits that Transco was required under federal law to obtain before it could commence construction activities on the pipeline project, and (2) denying the petitioners' request for an adjudicatory hearing to challenge the permits' issuance, based only on the NJDEP’s allegedly incorrect belief that the New Jersey regulations establishing the availability of such hearings were preempted by federal law.

As explained more fully below, although we conclude that the petitioners' challenges to FERC’s orders lack merit, we agree that the NJDEP’s interpretation of the relevant federal law was incorrect, thus rendering unreasonable the sole basis for its denial of the petitioners' request for a hearing. Given our disposition, we do not reach the petitioners' substantive challenges to the NJDEP’s provision of the permits, which—assuming a hearing is granted—we leave for the NJDEP to address in the first instance. We accordingly will deny in part and grant in part the petitions for review, and we will remand to the NJDEP for proceedings consistent with this opinion.

II. Background

This case presents challenges to both the federal and state governments' treatment of Transco’s application to construct its interstate pipeline project. Before detailing the agency proceedings that preceded this appeal, we first briefly set forth the various interlocking federal and state regulatory schemes at play, which this Court has already elucidated in some detail. See Del. Riverkeeper Network v. Sec'y of Pa. Dep't of Envtl. Prot., 870 F.3d 171, 174 (3d Cir. 2017) (" Delaware II"); Del. Riverkeeper Network v. Sec'y Pa. Dep't of Envtl. Prot., 833 F.3d 360, 367–69 (3d Cir. 2016) (" Delaware I").

A. Statutory Background

Under the Natural Gas Act of 1938 ("NGA"), 15 U.S.C. §§ 717 – 717z, FERC is tasked with regulating the construction and operation of interstate natural gas pipelines. Id. §§ 717f, 717n. If FERC determines that a given project should proceed, it will issue a "certificate of public convenience and necessity" (the "certificate"), which in turn is conditioned on the pipeline operator acquiring other necessary state and federal authorizations. See Delaware I, 833 F.3d at 367–68. Among the regulatory schemes related to the NGA are the federal environmental laws, including the National Environmental Policy Act ("NEPA"), 42 U.S.C. §§ 4321 – 4370h, and the Clean Water Act ("CWA"), 33 U.S.C. §§ 1251 – 1388. NEPA is primarily a procedural statute that requires FERC to assess "the potential environmental impact of a proposed pipeline

903 F.3d 244

project." Delaware I, 833 F.3d at 368. Upon completing the analysis, FERC must issue either an Environmental Assessment ("EA," if the analysis indicates that the project will have no significant environmental impacts) or an Environmental Impact Statement ("EIS," if the analysis indicates that the project will be a " ‘major Federal action’ that would ‘significantly affect[ ] the quality of the human environment’ "). Del. Riverkeeper Network v. U.S. Army Corps of Eng'rs, 869 F.3d 148, 152 (3d Cir. 2017) (quoting 42 U.S.C. § 4332(C) ). As to the CWA, although the NGA explicitly "preempts state environmental regulation of interstate natural gas facilities," it "allows states to participate in environmental regulation of these facilities under ... the Clean Water Act." Delaware I, 833 F.3d at 368. The CWA permits states, subject to United States Environmental Protection Agency approval, to establish their own minimum water quality standards, including by regulating the discharge of pollutants into bodies of water in the state. Id.

The NGA and CWA converge where, to construct an interstate pipeline, a company must discharge into—or displace water from—the navigable waters of the United States. Before a company is permitted to undertake this activity, it must obtain a permit pursuant to Section 404 of the CWA, which itself may issue only after the company secures a state-issued Water Quality Certification, pursuant to Section 401 of the CWA, "confirm[ing] that a given facility will comply with federal discharge limitations and state water quality standards." Id.; see also 33 U.S.C. § 1341(a) ("Any applicant for a Federal license or permit to conduct any activity ... which may result in any discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate, ... that any such discharge will comply with the applicable [water quality] provisions ... of this Act"). Because New Jersey has assumed permitting authority under Section 404—implemented by the NJDEP under the framework of the New Jersey Freshwater Wetlands Protection Act ("FWPA"), N.J. Stat. Ann. § 13:9B-1 —the issuance of a Section 404 permit in New Jersey carries with it a Section 401 Water Quality Certification. N.J. Admin. Code § 7:7A-2.1(c)–(d); Delaware I, 833 F.3d at 368–69.

B. Procedural History

The permits at issue in this case relate to Transco’s Garden State Expansion Project (the "Project"), by which Transco planned to upgrade its existing interstate natural gas pipeline system so that it could support the transportation of another 180,000 dekatherms per day of capacity for natural gas from its Mainline to its Trenton–Woodbury Lateral. The Project proposed to construct a new meter and regulating station, compressor station, and electric substation along the Trenton–Woodbury Lateral in Chesterfield, New Jersey (Station 203), and to upgrade and modify the existing motor drives and compressor station located on the Mainline in Mercer County, New Jersey (Station 205).

The New Jersey Natural Gas company ("NJNG") contracted with Transco to utilize all the capacity added by the Project, for distribution via NJNG’s intrastate pipeline...

To continue reading

Request your trial
18 practice notes
  • Tenn. Gas Pipeline Co. v. Permanent Easement for 7.053 Acres, No. 17-3700
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 23, 2019
    ...under state law," even though the facilities at issue might be part of a larger interstate project. Twp. of Bordentown, N.J. v. FERC , 903 F.3d 234, 268 (3d Cir. 2018) ; see Del. Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot. , 833 F.3d 360, 368 (3d Cir. 2016) (citing 15 U.S.C. § 71......
  • United States v. Kirsch, No. 16-3329-cr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 12, 2018
    ...under Count 1, REVERSE Kirsch’s conviction under Count 2, and REMAND the case to the district for entry of judgment of acquittal with 903 F.3d 234respect to Count 2, and for resentencing with respect to Count 1.--------Notes:** Judge Jed. S. Rakoff, United States District Court for the Sout......
  • Transcon. Gas Pipe Line Co. v. Permanent Easements for 2.14 Acres & Temp. Easements for 3.59 Acres in Conestoga Twp., Nos. 17-3075
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 30, 2018
    ...actions in the courts of the state where the property is situated); contra Township of Bordentown, NJ v. FERC , Nos. 17-1047, 17-3207, 903 F.3d 234, 265 n.21 (3d Cir. 2018) (NGA "requires district courts to attempt to mirror the state courts' condemnation proceedings").80 361 F.3d 808.81 Id......
  • Clifford Cole, Pamela Brian W. Weirback, Kathy Weirback, Todd Shelly v. Pa. Dep't of Envtl. Prot., 1577 C.D. 2019
    • United States
    • Commonwealth Court of Pennsylvania
    • June 15, 2021
    ...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 a......
  • Request a trial to view additional results
18 cases
  • Tenn. Gas Pipeline Co. v. Permanent Easement for 7.053 Acres, No. 17-3700
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • July 23, 2019
    ...under state law," even though the facilities at issue might be part of a larger interstate project. Twp. of Bordentown, N.J. v. FERC , 903 F.3d 234, 268 (3d Cir. 2018) ; see Del. Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot. , 833 F.3d 360, 368 (3d Cir. 2016) (citing 15 U.S.C. § 71......
  • United States v. Kirsch, No. 16-3329-cr
    • United States
    • United States Courts of Appeals. United States Court of Appeals (2nd Circuit)
    • September 12, 2018
    ...under Count 1, REVERSE Kirsch’s conviction under Count 2, and REMAND the case to the district for entry of judgment of acquittal with 903 F.3d 234respect to Count 2, and for resentencing with respect to Count 1.--------Notes:** Judge Jed. S. Rakoff, United States District Court for the Sout......
  • Transcon. Gas Pipe Line Co. v. Permanent Easements for 2.14 Acres & Temp. Easements for 3.59 Acres in Conestoga Twp., Nos. 17-3075
    • United States
    • United States Courts of Appeals. United States Court of Appeals (3rd Circuit)
    • October 30, 2018
    ...actions in the courts of the state where the property is situated); contra Township of Bordentown, NJ v. FERC , Nos. 17-1047, 17-3207, 903 F.3d 234, 265 n.21 (3d Cir. 2018) (NGA "requires district courts to attempt to mirror the state courts' condemnation proceedings").80 361 F.3d 808.81 Id......
  • Clifford Cole, Pamela Brian W. Weirback, Kathy Weirback, Todd Shelly v. Pa. Dep't of Envtl. Prot., 1577 C.D. 2019
    • United States
    • Commonwealth Court of Pennsylvania
    • June 15, 2021
    ...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 a......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT