In January, the Pennsylvania Supreme Court issued an opinion that may require environmental practitioners to reconsider how they think about the Environmental Hearing Board. Cole v. Pennsylvania Department of Environmental Protection, No. 21 EAP 2023 (Pa. Jan. 22, 2025), holds that the Natural Gas Act does not preempt EHB jurisdiction over a third-party appeal from issuance of a permit to construct – known as a “plan approval” – under the Air Pollution Control Act for a compressor station on a gas pipeline. That holding seems to conflict with a decision of the U.S. Court of Appeals for the Third Circuit in related litigation, Delaware Riverkeeper Network v. Secretary of the Department of Environmental Protection, 903 F.3d 65 (3d Cir. 2018). The federal court saw an EHB appeal as a challenge to a final action of the regulator, the DEP. However, our supreme court disagreed, holding that the EHB appeal is just part and parcel of a single regulatory process beginning with the DEP, but not culminating until after an EHB adjudication. That is new.
Continue reading the full column, published by The Legal Intelligencer March 5, 2025. Reprinted with permission.