Delaware Riverkeeper Network v. Secretary of the Pennsylvania Department of Environmental Protection
870 F.3d 171
| 3rd Cir. | 2017Background
- Tennessee Gas proposed the 12.9-mile Orion pipeline loop in Pennsylvania; nearly all routing parallels existing pipelines and would affect exceptional‑value wetlands in Pike and Wayne Counties.
- FERC is the lead federal agency under the Natural Gas Act; PADEP issues state Chapter 105 permits and a §401 Water Quality Certification required as a condition of FERC approval.
- PADEP issued a conditional Water Quality Certification (Sept. 2016) and two Chapter 105 permits (Feb. 23, 2017) finding the project is "water dependent" and the least environmentally damaging alternative for affected exceptional‑value wetlands.
- Delaware Riverkeeper Network (Riverkeeper) petitioned for review in this Court challenging (1) jurisdiction/timeliness and finality of PADEP’s order, (2) PADEP’s water‑dependency determination, and (3) PADEP’s rejection of a compressor ("compression") alternative.
- The District/Third Circuit companion case addressed the Army Corps’ related permitting; here the court focuses on PADEP administrative-finality and the substantive determinations under Pennsylvania regulations.
Issues
| Issue | Plaintiff's Argument (Riverkeeper) | Defendant's Argument (PADEP/Tennessee Gas) | Held |
|---|---|---|---|
| Jurisdiction / finality of PADEP order | PADEP order not final until reviewed by Environmental Hearing Board; transfer or dismissal for lack of jurisdiction | PADEP order became final because Riverkeeper did not timely appeal to the Board and permits have immediate legal effect | Court exercised jurisdiction: PADEP action was final under PA law and had practical legal consequences |
| Timeliness of petition to federal court | Petition untimely if measured by state appeal period to Board | Rule 15 looks to the statute (Natural Gas Act) for timing; no state deadline governs petition to this Court here | Petition timely; Court declines to apply Board appeal-period as controlling for federal filing |
| Water‑dependency finding | Water‑dependency should be interpreted per federal regime: linear infrastructure (pipelines) are categorically not water dependent | PADEP reasonably reads its regs to allow case‑by‑case water‑dependency determinations incorporating alternatives analysis | PADEP’s interpretation is reasonable and entitled to deference; its water‑dependency finding upheld |
| Rejection of compression alternative | PADEP arbitrarily rejected compression; compression would avoid wetland impacts | PADEP considered system/compression alternatives and reasonably concluded compression would cause other significant permanent environmental harms | Court upholds PADEP: record supports finding that compression would have significant adverse environmental effects and thus is not a practicable superior alternative |
Key Cases Cited
- Del. Riverkeeper Network v. Sec'y Pa. Dep’t of Envtl. Prot., 833 F.3d 360 (3d Cir. 2016) (PADEP §401/Chapter 105 permits are actions "pursuant to federal law" for NGA review)
- Berkshire Envtl. Action Team, Inc. v. Tenn. Gas Pipeline Co., LLC, 851 F.3d 105 (1st Cir. 2017) (discusses finality requirement and Massachusetts adjudicatory process)
- Bennett v. Spear, 520 U.S. 154 (1997) (familiar standard for agency action finality)
- Auer v. Robbins, 519 U.S. 452 (1997) (deference to agencies’ interpretations of their own regulations)
- Motor Vehicle Mfrs. Ass’n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983) (review of administrative action under arbitrary and capricious standard)
- NE Hub Partners, L.P. v. CNG Transmission Corp., 239 F.3d 333 (3d Cir. 2001) (PADEP permits effective pending EHB outcome)