Del. Riverkeeper Network v. Sec'y Pa. Dep't of Envtl. Prot.
903 F.3d 65
| 3rd Cir. | 2018Background
- Transcontinental Gas Pipe Line Co. (Transco) sought FERC approval for the Atlantic Sunrise pipeline; FERC conditioned construction on Transco obtaining all applicable federal authorizations, including Clean Water Act §401 state Water Quality Certification from PADEP.
- PADEP published notice and, after a comment period, issued a §401 Water Quality Certification in April 2016 conditioned on Transco later obtaining three substantive Pennsylvania permits (NPDES/ hydrostatic testing, Chapter 102 erosion/sediment, Chapter 105 water encroachments).
- Petitioners (environmental groups and landowners) filed consolidated petitions for review in the Third Circuit under the Natural Gas Act’s exclusive-review provision and also filed protective appeals to the Pennsylvania Environmental Hearing Board (EHB); the EHB stayed its proceedings pending this Court’s jurisdictional ruling.
- Primary legal threshold: whether the Natural Gas Act grants the courts of appeals exclusive jurisdiction to review only “final” state agency actions and, if so, whether PADEP’s §401 certification was final despite the availability of EHB review.
- The Third Circuit held it had jurisdiction because PADEP’s certification was a final agency action under the federal finality test, and it denied the petitions on the merits.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction / Finality under NGA §717r(d) | Review available only of final agency action; PADEP’s decision is non-final while EHB review remains available (citing First Circuit). | NGA allows review of state agency “action” and provides exclusive appellate jurisdiction over such reviews; PADEP’s certification is final. | Court: NGA review is limited to final agency action; PADEP’s §401 certification was final because it was immediately effective and was a definitive departmental decision separate from EHB review. |
| Adequacy of public notice under CWA §401 | PADEP’s published procedures/notice (Pennsylvania Bulletin) were inadequate; required notice of related substantive permits too. | PADEP followed its established notice policy (30-day Bulletin notice); no requirement that notice be in regulation or include unrelated future permit proceedings. | Court: PADEP’s notice procedures satisfied §401; no requirement to pre-notice the later substantive permits conditioned in the certification. |
| Conditional certification / arbitrary & capricious challenge | It was arbitrary to certify compliance now based on future permit approvals and Transco’s promises; PADEP should have considered substantive permits concurrently. | Sequencing is permissible; substantive permits will be fully adjudicated later and no construction can proceed until they are issued, so petitioners are not harmed. | Court: Denied—conditioning the §401 certification on later permits was not arbitrary or capricious under Riverkeeper precedent; no cognizable prejudice. |
| Takings / Due Process / Pennsylvania Constitution (Art. I §27) claims | Immediate certification enables eminent-domain actions and impairs property/environmental rights; PADEP’s process failed state trust-duty and procedural protections. | Takings claim attacks FERC’s certificate and must be raised to FERC or in the appropriate forum; Article I §27 claim is reviewable but fails on the merits because later permit processes will address impacts. | Court: Takings/due-process theory is the wrong vehicle here (challenges to FERC order belong elsewhere). State-constitutional claim is cognizable but fails on the merits because petitioners suffered no injury from conditional certification. |
Key Cases Cited
- Del. Riverkeeper Network v. Sec’y, Pa. Dep’t of Envtl. Prot., 833 F.3d 360 (3d Cir. 2016) (Riverkeeper I) (treated PADEP §401 process and sequencing with substantive permits).
- Del. Riverkeeper Network v. Sec’y, Pa. Dep’t of Envtl. Prot., 870 F.3d 171 (3d Cir. 2017) (Riverkeeper II) (applied federal finality hallmarks and held certain PADEP §401 actions final).
- Berkshire Env’t Action Team, Inc. v. Tenn. Gas Pipeline Co., LLC, 851 F.3d 105 (1st Cir. 2017) (held NGA review limited to final agency action and found Massachusetts initial order non-final).
- Bennett v. Spear, 520 U.S. 154 (U.S. 1997) (articulated the Bennett finality test for agency action).
- Columbia Gas Transmission, LLC v. Brown, 768 F.3d 300 (3d Cir. 2014) (explaining that a FERC certificate establishes the right to condemn; compensation remains the open issue).