On September 4, 2018, the United States Court of Appeals for the Third Circuit (“Third Circuit”) declined to review Pennsylvania’s water permit approval of Transcontinental Gas Pipe Line Company’s (“Transco”) Atlantic Sunrise Project. The Third Circuit ruled that it had jurisdiction to hear the state agency’s certificate decision on appeal even though the certificate decision was simultaneously being appealed to another Pennsylvania agency.
In the spring of 2015, Transco filed its certificate application with FERC for the Atlantic Sunrise Project, an expansion of Transco’s natural gas pipeline network in Pennsylvania and other northeastern states. At the same time, Transco asked the Pennsylvania Department of Environmental Protection (“PADEP”) to issue a Water Quality Certification for the project. In April 2016, PADEP approved Transco’s request, finding that Transco would comply with state water quality standards if it satisfied certain conditions, including obtaining certain additional permits from PADEP related to water quality and sediment. In response, certain environmental groups (“Petitioners”) appealed to both the Third Circuit under the exclusive review provision of the Natural Gas Act (“NGA”), and to the Pennsylvania Environmental Hearing Board (“EHB”).
On appeal, Petitioners claimed that the Third Circuit lacked jurisdiction to review their claims, arguing that the NGA only permits parties to appeal to the Third Circuit once the state agency’s action is final, and that PADEP’s Water Quality Certification is not final until the EHB rules on Petitioners’ administrative appeal. The Third Circuit rejected these arguments, finding that PADEP’s decision was the agency’s final action that took effect immediately, and, although appeals to the EHB were available, the EHB is an independent agency whose actions do not stop PADEP’s decisions from becoming final.
Petitioners also made a number of substantive claims with respect to PADEP’s Water Quality Certification. First, they alleged that PADEP failed to provide sufficient public notice prior to issuing a Water Quality Certification. The Third Circuit rejected this argument, finding that PADEP followed its longstanding policy to provide notice of a request for Water Quality Certification and a 30-day comment period, and no additional notice—including establishing notice procedures by regulation—was required. Petitioners next argued that PADEP’s decision to issue a Water Quality Certification that was conditioned upon the requirement that Transco obtain additional permits was arbitrary and capricious. The Third Circuit disagreed, finding that, since no construction can begin until PADEP issues the additional permits, petitioners could not show that they had been harmed by PADEP’s decision.
Petitioners also raised multiple constitutional arguments, maintaining that PADEP’s ruling violates the Takings Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment because the issuance of the certification is a condition precedent for initiating eminent domain proceedings under Transco’s pipeline certificate from FERC. The Third Circuit rejected these arguments as well, finding that Petitioners’ argument should have been raised in a request for rehearing of FERC’s certificate order, rather than the PADEP’s Water Quality Certification.
Finally, Petitioners argued that PADEP violated the Pennsylvania State Constitution’s right to the Commonwealth’s natural resources because it granted a Water Quality Certification before collecting the relevant environmental data necessary to issue the permits related to water quality, sediment, and obstructions. The Third Circuit dismissed this argument, finding that Petitioners were unable to show that they had been harmed by PADEP’s decision to issue a conditional Water Quality Certification.
A copy of the opinion may be found here.