PA Environment Digest Blog: Federal Court Again Says Groups Have A Right To Appeal Permits For Gas Pipelines To State Environmental Hearing Board, Overruling Transco, DEP Objections

Tuesday, July 9, 2024

Federal Court Again Says Groups Have A Right To Appeal Permits For Gas Pipelines To State Environmental Hearing Board, Overruling Transco, DEP Objections

On July 8, the US Court of Appeals for the Third Circuit issued a decision siding with environmental organizations, vindicating their right to challenge permits issued to the Transcontinental Gas Pipe Line Company, LLC (Transco) before the Pennsylvania Environmental Hearing Board.

The Third Circuit affirmed that the Pennsylvania Environmental Hearing Board has jurisdiction to hear appeals of state permits issued as part of gas pipeline projects.

As a result, the legal challenge brought by the Delaware Riverkeeper Network and PennFuture before the PA EHB can proceed.

Notably, the Pennsylvania Department of Environmental Protection had joined with Transco in seeking to prevent the Delaware Riverkeeper Network and PennFuture from challenging state permits granted to the pipeline project.

The Third Circuit rejected Transco and PADEP’s argument that any legal challenge to the state-issued administrative environmental permits must exclusively be brought before a federal court.

[Note: On May 29, on behalf of the shale gas industry, Sen. Camera Bartolotta (R-Washington) introduced Senate Bill 1216 to eliminate the ability of citizens, local governments and anyone else to appeal permits issued by DEP for natural gas pipelines and related facilities to the Environmental Hearing Board.

[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.”

[Obviously the federal Court of Appeals does not agree. Read more here.

[The bill is in the Senate Environmental Resources and Energy Committee.

[Sen. Gene Yaw (R-Lycoming) serves as Majority Chair of the Senate Environmental Committee and can be contacted by calling 717-787-3280 or sending email to: gyaw@pasen.gov. Sen. Carolyn Comitta (D-Chester) serves as Minority Chair and can be contacted by calling 717-787-5709 or sending email to: senatorcomitta@pasenate.com.]

Background

“It was quite disturbing that the PADEP sought to strip its own state Environmental Hearing Board of legal authority over permit decisions,” said Maya van Rossum, the Delaware Riverkeeper, and leader of the Delaware Riverkeeper Network.

“Unfortunately, when it comes to natural gas pipelines, it is common that environmental organizations like the Delaware Riverkeeper Network and PennFuture don’t just have to face down the monumental financial and legal resources of the pipeline companies themselves, but routinely the state government and the federal government sides with the pipeline companies against the people.

“But in this case, the courts have rightly sided with the people. In short, this victory validates and secures the rights of impacted communities to challenge state issued approvals to natural gas pipelines through their own state’s administrative appeals process.

“We look forward to the opportunity to make our case before the PA EHB that the permits granted to Transco should be vacated and the project should not be allowed to proceed,” said van Rossum.

“Every single court that has reviewed this issue to this point has found that Pennsylvania’s Environmental Hearing Board can take up this appeal and review Transco’s plans to cross and impact multiple miles of Pennsylvania’s special protection waters,” said Jessica O'Neill, PennFuture's Managing Attorney for Litigation. “We will continue to push back against Transco’s attempt to evade review, and we will continue to challenge these permits that degrade Pennsylvania’s special protection waters.”

“Today’s decision is a resounding victory for Pennsylvanians whose environmental rights are jeopardized by natural gas pipeline construction. The Third Circuit confirmed that the federal Natural Gas Act does not prevent our Environmental Hearing Board from reviewing pipeline permits issued by the Department of Environmental Protection. The ability to administratively appeal these pipeline permits gives Pennsylvanians the power to challenge bad decisions by the DEP—just as they would be able to for any other permit,” said Kacy Manahan, Senior Attorney representing van Rossum and the Delaware Riverkeeper Network and who was the lead attorney defending against the Transco lawsuit.

The administrative appeal at issue was brought by the Delaware Riverkeeper Network, the Delaware Riverkeeper Maya van Rossum, and PennFuture seeking to challenge state permits that provided the underlying basis for the Pennsylvania’s Clean Water Act approval (what is known as 401 Certification) of the Transco REAE pipeline.

Following the usual protocol for legal appeal of state permitting, the organizations brought their appeal of the permits before the PA Environmental Hearing Board.

The permits being challenged are not only required for the project to advance within Pennsylvania, but are also an underlying requirement of the Federal Energy Regulatory Commission (FERC) Certification of the project.

Transco and PADEP challenged the environmental organizations’ appeal by filing a complaint in the U.S. District Court for the Middle District of Pennsylvania, asserting that the PA EHB had no jurisdiction to hear administrative appeals of state issued permits involving FERC regulated natural gas pipeline infrastructure, and that instead, any legal challenge had to proceed before the Federal Third Circuit Court of Appeals.

In the July 8 precedential opinion, the Third Circuit rejected Transco’s arguments and upheld the authority of the PA EHB to review the challenged permitting, and in so doing, it strengthened the rights of a state, in this case the Commonwealth of Pennsylvania, to have primary legal authority regarding Clean Water Act regulation for natural gas pipeline infrastructure.

Click Here for a copy of the decision.

NewsClip:

-- Marcellus Drilling News: 3rd Circuit Sides With PA Antis’ Right To Appeal Transco REAE Permits To State EHB [PDF of article]

Resource Link:

-- Gas Industry, Sen. Bartolotta Seek Legislation To Eliminate Environmental Hearing Board Appeals Of DEP Permits For Natural Gas Pipeline Facilities [PaEN]

PA Oil & Gas Industry Public Notice Dashboards:

-- PA Oil & Gas Weekly Compliance Dashboard - July 6 to 12 - Double Shale Gas Wastewater Pipeline Failure; 19 + 12 Abandoned Conventional Wells; Draining Water Impoundment By Spraying [PaEN]

-- PA Oil & Gas Industrial Facilities: Permit Notices, Opportunities To Comment - July 13 [PaEN]

-- DEP Posted 77 Pages Of Permit-Related Notices In July 13 PA Bulletin [PaEN]