Delaware Riverkeeper Network v. Secretary Pennsylvania Department of Environmental Protection
833 F.3d 360
| 3rd Cir. | 2016Background
- Transcontinental Gas Pipe Line Co. (Transco) sought FERC approval to expand its Leidy Line via four pipeline "loops" and compressor upgrades in NJ and PA; FERC issued a certificate conditioned on obtaining state and federal environmental authorizations.
- NJDEP issued Freshwater Wetlands Individual Permits, Flood Hazard Area Individual Permits, Water Quality Certifications, and Letters of Interpretation for the two New Jersey loops after public notice, hearings, and revised filings; construction in New Jersey was largely complete when challenged.
- PADEP issued a Section 401 Water Quality Certification and later a Chapter 105 (encroachment) permit for the Pennsylvania loops; the Army Corps retained Section 404 permitting in PA.
- Petitioners (Delaware Riverkeeper Network; New Jersey Conservation Foundation and local groups) challenged PADEP and NJDEP permitting decisions in the Third Circuit under the Natural Gas Act's judicial-review provision (Section 19(d)).
- The Third Circuit consolidated the petitions and reviewed jurisdictional, sovereign-immunity, mootness, and APA/arbitrary-and-capricious challenges to state Clean Water Act–related actions conditioned on FERC’s certificate.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Jurisdiction under NGA §19(d) over state 401/404-based actions | Petitioners: Courts of Appeals have original jurisdiction to review state agency actions issued “pursuant to Federal law” for interstate pipelines | NJDEP/PADEP: State 401 certifications are state-law exercises; not "pursuant to federal law," so §19(d) doesn't apply | Court: §19(d) covers state action taken pursuant to Clean Water Act; 401/404-related state permits are issued under federal law and fall within §19(d) jurisdiction — jurisdiction exists |
| Eleventh Amendment sovereign immunity | Petitioners: States waived immunity by accepting Clean Water Act delegated authority and by operation of §19(d) | NJDEP/PADEP: Participation in CWA does not waive Eleventh Amendment; NJ reserved immunity in MOA with EPA | Court: States knowingly accepted a federal regulatory grant that conditions participation on federal review; §19(d) creates a limited waiver (gratuity waiver) — immunity does not bar review |
| Mootness of NJ challenge (construction substantially complete) | Foundation: NJ construction largely complete, but court can still order additional environmental analysis/mitigation | NJDEP/Transco: Completion and mitigation render judicial relief ineffectual (moot) | Court: Not moot — NJDEP retains authority to monitor mitigation and require additional remedial measures; meaningful relief remains possible |
| Merits: arbitrary-and-capricious review of NJDEP/PADEP permitting | Petitioners: Agencies failed to allow adequate comment, misapplied standards on alternatives, project purpose, species/habitat impacts, wetlands classification, sequencing of environmental review | Agencies: Followed procedures, considered alternatives and public comments, imposed mitigation, sequence of PADEP review did not prejudice challengers; PADEP’s actions tied to Chapter 105 review | Court: Applied de novo to federal-law interpretation and APA arbitrary-and-capricious review to agency facts; found no prejudicial error — NJDEP/PADEP did not act arbitrarily or capriciously; one NJ minor-modification claim was unripe and not considered |
Key Cases Cited
- MCI Telecommunications Corp. v. Bell Atlantic Pennsylvania, 271 F.3d 491 (3d Cir. 2001) (construing when state participation in federal regulatory schemes constitutes waiver of Eleventh Amendment immunity).
- Islander East Pipeline Co. v. Connecticut Department of Environmental Protection, 482 F.3d 79 (2d Cir. 2006) (holding states’ CWA authority over interstate pipelines derives from federal grant and informing §19(d) analysis).
- Motor Vehicle Manufacturers Ass’n v. State Farm Mutual Automobile Ins. Co., 463 U.S. 29 (U.S. 1983) (standard for arbitrary and capricious review under the APA).
- Schneidewind v. ANR Pipeline Co., 485 U.S. 293 (U.S. 1988) (confirming FERC’s exclusive authority to authorize interstate pipeline construction).
- Decker v. Northwest Environmental Defense Center, 133 S. Ct. 1326 (U.S. 2013) (standing and case-or-controversy principles relevant to mootness and justiciability).
- Hans v. Louisiana, 134 U.S. 1 (U.S. 1890) (Eleventh Amendment immunity principles).