She contends the federal Natural Gas Act mandates the federal Court of Appeals for the Third Circuit has “exclusive jurisdiction over an appeal which challenges any state agency’s action in either approving or denying a permit when the state agency acts on the basis of federal law.”
That includes any permit DEP issue under the federal Clean Air Act (Air Quality), Clean Water Act (Chapter 102 Erosion and Sedimentation, Chapter 105 Encroachments) or other state permits issued in part under federal statutes.
Sen. Bartolotta said, “Despite this clear mandate, our Pennsylvania Commonwealth Court recently ruled that an appeal challenging DEP’s approval of a permit was properly filed before the Pennsylvania Environmental Hearing Board (EHB), rather than the Third Circuit Court of Appeals.
“The court's decision in this regard allows for an additional layer of administrative review of a permitting decision before the appeal can be heard and decided by the Third Circuit, contrary to the express provisions and the clear intent of the NGA,” according to Sen. Bartolotta.
Click Here for a copy of the memo.
Background
Sen. Bartolotta’s memo brings to light a legal issue that has been fought in the Environmental Hearing Board and state and federal courts for nearly a decade, according to Kacy Manahan, Senior Attorney for the Delaware RiverKeeper Network.
The Delaware RiverKeeper Network, Clean Air Council, PennFuture, Fair Shake Environmental Legal Services and the Mountain Watershed Association have been defending Environmental Hearing Board appeals of DEP permits covering gas pipeline facilities.
[See amicis brief with legal arguments to preserve the right of EHB appeal.]
Gas pipeline companies like Adelphia Gateway and the Transcontinental Gas Pipe Line have argued, with the support of the Department of Environmental Protection which is defending permits it issued, the federal Natural Gas Act gives the federal Third Circuit Court exclusive jurisdiction in appeals of DEP permits for gas pipeline facilities.
So far, all the challenges brought by gas companies and DEP urging the Environmental Hearing Board and various courts to dismiss appeals in favor of the Natural Gas Act process have lost.
Manahan noted a federal Third Circuit Court decision in 2018 said clearly the Natural Gas Act preempts only state court review of permits, not administrative reviews--
“[T]he NGA explicitly permits states ‘to participate in environmental regulation of [interstate natural gas] facilities’ under the CWA . . . and only removes from the states the right for their courts to hear civil actions seeking review of interstate pipeline–related state agency orders made pursuant thereto, the NGA leaves untouched the state's internal administrative review process, which may continue to operate as it would in the ordinary course under state law.” (Twp. of Bordentown v. F.E.R.C., 903 F.3d 234, 268 (3d Cir. 2018))
Sen. Bartolotta’s legislation seeks to reverse this losing record by changing the rules of appeal with a new state law.
One case Sen. Bartolotta referred to in her memo, involved the 2019 appeal of an DEP Air Quality Plan Approval for the Adelphia Gateway Quakertown Compressor Station in Quakertown, Bucks County that was dismissed by the Environmental Hearing Board based on the National Gas Act exclusive jurisdiction argument. [EHB Docket #2019046]
However, that dismissal was reversed by Commonwealth Court in an opinion on June 15, 2021 and remanded back to the EHB for consideration of the appeal.
Adelphia Gateway and the Department of Environmental Protection appealed the Commonwealth Court decision to the PA Supreme Court where it is now.
The Bucks County residents who challenged the Adelphia compressor station are continuing to pursue the case at the PA Supreme Court separate from the Delaware RiverKeeper Network litigation. (See brief filed by residents.)
Another case involving the appeal of erosion and sedimentation control permits for the Transcontinental Gas Pipe Line Company, LLC Regional Energy Access Expansion Project to the Environmental Hearing Board also involves this issue. [EHB Docket #2023026]
In this case, Transcontinental made a motion to stay this appeal, consented to by DEP, based on the Natural Gas Act jurisdiction issues. The EHB denied the motion. The case continues on appeal.
A third case now in federal appeals court involves a Transcontinental Gas Pipe Line Company, LLC and Department of Environmental Protection joint appeal of a federal Middle District Court order granting the Delaware RiverKeeper Network and PennFuture motion to dismiss the Transco/DEP appeal based on the Natural Gas Act argument.
DEP’s brief supporting the issue of dismissing the EHB appeal lays out the legal arguments supporting exclusive jurisdiction of appeals under the Natural Gas Act. (Transcontinental Gas Pipe Line, LLC v. Pennsylvania Environmental Hearing Board, Docket Nos. 24-1099 & 24-1142 (3d Cir.))
DEP summarized its argument by saying-- “This Court should overturn the District Court’s dismissal of Transco’s Complaint because the only forum for challenging the REAE Permits is the Third Circuit.
“The Natural Gas Act broadly preempts all state oversight over interstate natural gas transport and sale, excepting and preserving only state agency authority to issue permits and authorizations under the Clean Air Act, Clean Water Act and the Coastal Zone Management Act.
“As part of that, Congress intentionally vested the United States Courts of Appeal with “exclusive and original” jurisdiction over challenges to state-issued Federal authorizations.”
Reactions To Proposed Legislation
Kacy Manahan, Senior Attorney for the Delaware RiverKeeper Network said, “This bill would be a huge dereliction of Pennsylvania’s authority and duty to regulate natural gas infrastructure, as the [federal] Natural Gas Act allows for state administrative review of permits, and the Third Circuit has stated this explicitly.
“All natural gas infrastructure in Pennsylvania would be essentially subject to ‘environmental permitting lite’ compared to all other projects, including other non-NGA federal projects.
“The EHB is an essential part of Pennsylvania’s permitting system, and a bill that voluntarily truncates the permitting process for a select industry would be constitutionally suspect.”
Alex Bomstein, Executive Director of the Clean Air Council said, "For decades, the Pennsylvania Environmental Hearing Board has successfully resolved disputes over state environmental permits. The gas industry doesn't need more special favors from the state, and it certainly hasn't shown it deserves them."
Emma Bast, Staff Attorney for PennFuture, said, "The Environmental Hearing Board is a critical part of Pennsylvania’s environmental administrative system. Federal and state courts alike have reached this same conclusion.
“This bill is an effort to create a separate permitting pathway for natural gas projects, and to treat natural gas differently than other forms of energy, the definition of picking winners and losers.”
Not First Attempt To Limit Citizen Appeals
This is not Sen. Bartolotta’s first legislation to limit the rights of citizens to appeal DEP permit decisions to the Environmental Hearing Board.
Starting in 2019, the Senator introduced Senate Bill 727 that would create a new standard for review of DEP permit appeals by limiting parties appealing permit decisions-- a company or a citizens group-- to issues raised in and information contained in a record of decision of a permit prepared by DEP. Read more here.
This bill was introduced as Senate Bill 717 in 2021 and was reintroduced in 2023 as Senate Bill 198.
Resource Links:
-- Manko Gold, Katcher & Fox Blog: Commonwealth Court Holds Natural Gas Act Does Not Divest The Environmental Hearing Board Of Jurisdiction Over Appeals Of Agency Actions
-- Sen. Bartolotta Reintroduces Bill Narrowing Grounds For Citizen Appeals Of DEP Permit Decisions [PaEN]
Related Articles This Week: - Gas
-- Gas Industry, Sen. Bartolotta Seek Legislation To Eliminate Environmental Hearing Board Appeals Of DEP Permits For Natural Gas Pipeline Facilities [PaEN]
-- Damascus Citizens: Do You Live In An Oil & Gas Wastewater Disposal Facility? Public Roads In 84 Municipalities In PA, One County In NY Are Being Used As Disposal Areas For Wastewater [PaEN]
-- Guest Essay: Oil & Gas Industry Waste And Radioactive Drinking Water In Pennsylvania - By Justin Nobel, Author of Petroleum-238: Big Oil's Dangerous Secret and the Grassroots Fight to Stop It [PaEN]
-- Pennsylvanians Realized $500+ Billion In Public Health Benefits By Eliminating Coal-Fired Power Plants, Switching To Natural Gas [PaEN]
NewsClips This Week - Gas:
-- TribLive: Many West Deer Residents Calling For More Stringent Regulations On Shale Gas Drilling In Allegheny County
-- TribLive: Indiana Twp. Rezoning Would Accommodate Fracking Off Route 910 In Westmoreland County
-- FracTracker Alliance: Not-So-Radical Transparency - An Ineffective And Unnecessary Partnership Between Pennsylvania Gov. Shapiro And The Shale Gas Company CNX
-- The Energy Age Blog: Federal Radioactive Oil & Gas Waste Exemption History
-- WHYY: Could PA’s Oil & Gas Wastewater Hold The Key To The Country’s Energy Transition?
-- Citizens Voice Editorial: Protect Consumers From Energy Market Volatility By Reforming Utility-Rate Process [UGI Gas Increases]
-- Bloomberg: Natural Gas Prices Will Be Increasing Through 2025
[Posted: May 21, 2024] PA Environment Digest
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