257 A.3d 805
Pa. Commw. Ct.2021Background
- Adelphia Gateway sought and received DEP plan approval (April 19, 2019) for the Quakertown Compressor Station, part of an interstate natural gas project for which Adelphia had applied to FERC.
- Petitioners timely appealed DEP’s plan approval to the Environmental Hearing Board (EHB).
- Adelphia and DEP argued that 15 U.S.C. § 717r(d)(1) of the Natural Gas Act (NGA) vests exclusive original jurisdiction in the Third Circuit over challenges to state permitting actions ‘‘required under Federal law,’’ so the EHB lacked subject-matter jurisdiction.
- The EHB dismissed the appeal for lack of jurisdiction, relying on Third Circuit precedent.
- The Commonwealth Court reversed, holding the NGA’s phrase "civil action" does not include state administrative appeals to agencies like the EHB, and remanded for the EHB to proceed with the administrative appeal.
Issues
| Issue | Petitioners' Argument | DEP/Adelphia's Argument | Held |
|---|---|---|---|
| Whether § 717r(d)(1) strips EHB of jurisdiction over a timely administrative appeal of DEP plan approval | § 717r(d)(1) covers only "civil actions" in courts, not administrative appeals to agencies | § 717r(d)(1) grants exclusive review in the Third Circuit of state permitting decisions tied to federally delegated programs, so EHB lacks jurisdiction | Held for Petitioners: "civil action" excludes state administrative agency proceedings; EHB retains jurisdiction to hear the appeal |
| Whether a statutory appeal to the EHB qualifies as a "civil action" under the NGA | Administrative adjudications are not "civil actions" | The term "civil action" should encompass challenges to state permits arising under federal law | Held for Petitioners: ordinary meaning (and precedent) treats "civil action" as court litigation, not agency adjudication |
| Whether DEP’s plan approval here was an action "pursuant to Federal law" requiring Third Circuit review | Plan approval was issued under Pennsylvania law and, Petitioners say, did not require an EPA CAA permit because the source was not a major source | DEP/Adelphia contend the Plan Approval Regulations are part of the SIP and enforceable as federal law, and FERC conditioned its certificate on state approvals, bringing the approval within NGA scope | Court declined to resolve this question on appeal (decision rests on the narrower "civil action" point) |
| Effect of federal finality doctrine and Third Circuit Riverkeeper decisions on EHB review | EHB review is a valid state administrative remedy parallel to federal review; finality does not preclude EHB jurisdiction | DEP/Adelphia relied on Third Circuit cases finding state permits final for purposes of federal review and argued federal jurisdiction displaces state remedies | Court: Riverkeeper decisions do not show § 717r(d)(1) preempts state administrative review; EHB review remains available |
Key Cases Cited
- Township of Bordentown v. Federal Energy Regulatory Commission, 903 F.3d 234 (3d Cir. 2018) ("civil action" in §717r(d)(1) excludes administrative hearings; preserves state administrative review)
- Delaware Riverkeeper Network v. Secretary Pennsylvania Dep’t of Envtl. Prot., 833 F.3d 360 (3d Cir. 2016) (state permitting decisions tied to federal law may be reviewable in courts of appeals under NGA)
- Delaware Riverkeeper Network v. Secretary Pennsylvania Dep’t of Envtl. Prot., 870 F.3d 171 (3d Cir. 2017) (ripeness and finality considerations for NGA review)
- Delaware Riverkeeper Network v. Secretary Pennsylvania Dep’t of Envtl. Prot., 903 F.3d 65 (3d Cir. 2018) (NGA review limited to final state actions; DEP permits can be final for federal review)
- Bennett v. Spear, 520 U.S. 154 (1997) (federal administrative-finality test)
- Bell v. Cheswick Generating Station, 734 F.3d 188 (3d Cir. 2013) (approved SIP provisions constitute federal law and are federally enforceable)
- Dominion Transmission, Inc. v. Summers, 723 F.3d 238 (D.C. Cir. 2013) (state permit decisions under SIP can be treated as actions pursuant to federal law)