Transcontinental Gas Pipe Line Co LLC v. Pennsylvania Environmental Hearing BoardTranscontinental Gas Pipe Line Co LLC v. Pennsylvania Environmental Hearing Board
Andrew T. Bockis SAUL EWING 2 N Second Street Penn National Insurance Plaza, 7th Floor Harrisburg, PA 17101
Patrick F. Nugent Sean T. O‘Neill John F. Stoviak SAUL EWING 1500 Market Street Centre Square West, 38th Floor Philadelphia, PA 19102
Elizabeth U. Witmer [ARGUED] SAUL EWING 1200 Liberty Ridge Drive Suite 200 Wayne, PA 19087
Counsel for Transcontinental Gas Pipe Line Co., LLC
Emma H. Bast Jessica R. O‘Neill PENNFUTURE 1429 Walnut Street Suite 701 Philadelphia, PA 19102
Kacy C. Manahan [ARGUED] DELAWARE RIVERKEEPER NETWORK 925 Canal Street Suite 3701 Bristol, PA 19007
Counsel for Citizens for Pennsylvania‘s Future
Emma H. Bast PENNFUTURE 1429 Walnut Street Suite 701 Philadelphia, PA 19102
Kacy C. Manahan [ARGUED] DELAWARE RIVERKEEPER NETWORK 925 Canal Street Suite 3701 Bristol, PA 19007
Counsel for Delaware Riverkeeper Network
Kacy C. Manahan [ARGUED] DELAWARE RIVERKEEPER NETWORK 925 Canal Street Suite 3701 Bristol, PA 19007
Counsel for Maya K. van Rossum
Margaret O. Murphy [ARGUED] PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION 400 Market Street P.O. Box 8469 Harrisburg, PA 17105
Curtis C. Sullivan PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION 909 Elmerton Avenue 3rd Floor Harrisburg, PA 17110
Counsel for Intervenor Pennsylvania Department of Environmental Protection
OPINION OF THE COURT
PHIPPS, Circuit Judge.
To construct, extend, or abandon an interstate natural gas pipeline requires permits from both federal and state agencies. In this case, a pipeline company obtained all the permits needed to abandon and replace part of its pipeline and to еxpand its pipeline through new construction in Pennsylvania. The company then began those endeavors. But within the time permitted by state law, environmental advocates administratively appealed the Pennsylvania state agency‘s issuance of three of the required permits to another state agency, as allowed by state law.
With those permits in jeopardy and the construction project underway, the pipeline company initiated this action in the District Court for declaratory and injunctive relief. It also moved to preliminarily
In this timely appeal of that decision, the pipeline company challenges that ruling. On de novo review, because none of the theories of preemption advanced by the pipeline company or the state agency apply here, we have affirmed the District Court‘s denial of the preliminary-injunction motion for the reasons below.
I. FACTUAL BACKGROUND AND PROCEDURAL HISTORY
Transcontinental Gas Pipe Line Company, LLC, commonly referred to as “Transco,” is a natural gas company subject to the Natural Gas Act. See
On March 26, 2021, Transco applied for such a certificate. After notice and an opportunity for public comment, FERC issued the certificate through an order dated January 11, 2023. See Transcontinental Gas Pipe Line Co., 182 FERC ¶ 61,006 (2023). But FERC placed numerous conditions on that certificate as it may legally do. See generally
One of those conditions required Transco to provide documentation to FERC that it had “received all applicable authorizations required under federal law (or evidence of waiver thereof)” before commencing the project. Transcontinental, 182 FERC ¶ 61,006, at App. B, P 10. And a federal law, the Clean Water Act, requires a Water Quality Certification from any state in which the federally licensed activity may result in the origination of a discharge of pollutants into the navigable waters of the United States. See
Under its Clean Water Act powers, PADEP, as the agency is commonly abbreviated, can impose conditions on a Water Quality Certification. See
Transco applied for the Sub-Permits, and on February 3, 2023, PADEP issued them. About a month after receiving the Sub-Permits, Transco began its pipeline project.
A Pennsylvania statute, however, allows any person adversely affected by a PADEP permitting decision to administratively appeal that ruling to a separate state agency, the Environmental Hearing Board, commonly abbreviated as the “EHB.” See
Nonetheless, while that administrative appeal was pending before the EHB, Transco initiated this action in the District Court against the environmental advocates and the members of the EHB to enjoin those proceedings. See Armstrong v. Exceptional Child Ctr., Inc., 575 U.S. 320, 326–27 (2015) (articulating the long-held legal principle “that federal courts may in some circumstances grant injunctive relief against state officers who are violating, or planning to violate, federal law“). Transco also sought a judgment declaring that, under the Naturаl Gas Act, this Court was the sole forum to dispute PADEP‘s issuance of the Sub-Permits. See
Eight days later, Transco moved for a preliminary injunction to prevent the administrative appeal to the EHB from going forward. See
In exercising federal-question jurisdiction over the case,1 the District Court denied Transco‘s motion. It determined that
Through a timely notice of appeal, Transco invoked this Court‘s appellate jurisdiction to dispute the denial of its motion for a preliminary injunction. See
II. DISCUSSION
A preliminary injunction is an “extraordinary and drastic” subspecies of injunctive relief that is issued before resolution on the merits and that applies during the pendency of litigation. Munaf v. Geren, 553 U.S. 674, 689 (2008) (quoting 11A Charles Alan Wright, Arthur R. Miller & Mary Kay Kane Federal Practice and Procedure § 2948, at 129 (2d ed. 1995)); see also Santana Prods., Inc. v. Compression Polymers, Inc., 8 F.3d 152, 154 (3d Cir. 1993) (explaining that “injunctive relief” refers to the use of a court‘s equitable powers to issue “[o]rders that are directed to a party, enforceable by contempt, and designed to accord or protect some or all of the substantive relief sought by a complaint in more than a temporary fashion” (cleaned up)). Like all equitable relief, a preliminary injunction is “never awarded as of right,” but rather it involves the exercise of “equitable discretion.” Winter v. Nat. Res. Def. Council, Inc., 555 U.S. 7, 24, 32 (2008). This Court recognizes four considerations that bear on the exercise of that discretion:
- A reasonable probability of success on the merits of the claim for which injunctive relief is sought;
- An irreparable harm in the absence of preliminary injunctive relief;
- A balancing of the equities associated with the possibilities of harms to other interested persons resulting from the grant or denial of injunctive relief; and
- An assessment of the public interest.
See Reilly v. City of Harrisburg, 858 F.3d 173, 176 (3d Cir. 2017); Amoco Prod. Co. v. Village of Gambell, 480 U.S. 531, 546 n.12 (1987) (“The standard for a preliminary injunction is essentially the same as for a permanent injunction with the exception that the plaintiff must show a likelihood of success on the merits rather than actual success.“); see also Winter, 555 U.S. at 20; Kim v. Hanlon, 99 F.4th 140, 154–55 (3d Cir. 2024).
The first two considerations – a reasonable probability of ultimate success and some harm that cannot be remedied in either law or equity following resolution on the merits – operate both as essential elements and as factors that guide the exercise of equitable discretion. They are elements because the failure of the moving party to make either of those threshold showings is fatal to the issuance of a preliminary injunction. See Reilly, 858 F.3d at 179 (referring to the first two considerations as “gateway factors“); Franchisee Litig.” cite=“689 F.2d 1137” pinpoint=“1143” court=“3rd Cir.” date=“1982“>In re Arthur Treacher‘s Franchisee Litig., 689 F.2d 1137, 1143 (3d Cir. 1982) (“Unless both a reasonable probability of eventual success and irreparable harm are demonstrated, preliminary injunctive relief is not to be granted.” (citation and quotation omitted)). They are factors because once the moving party makes the two threshold showings, then the relative weights of those considerations are evaluated along with the other
The dual function of the first two considerations has practical consequences as well. A near certain likelihood of success on the merits or a particularly severe irreparable harm will influence the exercise of equitable discretion more than minimal qualifying showings for those considerations. Conversely, if there is an “insuperable” barrier to the plaintiff‘s ability to succeed on the merits or an absence of an irreparable harm, then an analysis of the remaining considerations is unnecessary. Munaf, 553 U.S. at 691 (quotation omitted); see also Amalgamated Transit Union Loc. 85 v. Port Auth. of Allegheny Cnty., 39 F.4th 95, 103 (3d Cir. 2022) (explaining that the movant must satisfy the threshold prerequisites). Even more, an insuperable barrier to a plaintiff‘s success on the merits allows the reviewing court, in the exercise of its equitable discretion, to deny relief on the underlying claim. See Munaf, 553 U.S. at 691 (“Review of a preliminary injunction ‘is not confined to the act of granting the injunctio[n], but extends . . . to determining whether there is any insuperable objection, in . . . jurisdiction or merits, to the maintenance of [the] bill‘” (first and fourth alteration in оriginal) (quoting City & County of Denver v. N.Y. Tr. Co., 229 U.S. 123, 136 (1913))); see also id. (explaining that in reviewing the grant or denial of a preliminary injunction, an appellate court‘s extension of review to the merits is “most appropriate if the injunction rests on a question of law and it is plain that the plaintiff cannot prevail“).
Here, Transco‘s motion and its entire case are premised on preemption. It asserts that the Pennsylvania statute allowing an administrative appeal to the EHB, see
A. The Natural Gas Act Does Not Expressly Preempt Administrative Appeals to the EHB.
Express preemption requires an explicit statement of federal law that announces and defines the scope of displaced state regulation. See Pac. Gas & Elec. Co. v. State Energy Res. Conservation & Dev. Comm‘n, 461 U.S. 190, 203 (1983) (“It is well-established that within Constitutional limits Congress may preempt state authority by so stating in express terms.“); Farina v. Nokia Inc., 625 F.3d 97, 115 (3d Cir. 2010) (“Express preemption applies where Congress, through a statute‘s express language, declares its intent to displace state law.“). The explicit statutory conferral of exclusive jurisdiction to a federal court
Relevant here, a clause in the Natural Gas Act grants federal appellate courts “original and exclusive jurisdiction over any civil action” that challenges state administrative agency action taken “pursuant to Federal law to issue, condition, or deny any permit . . . required under Federal law.”
But “the presence of an express preemption provision does not end the inquiry” because courts still must examine “the scope of the preemption provision.” Farina, 625 F.3d at 118; see also Medtronic, Inc. v. Lohr, 518 U.S. 470, 484 (1996) (explaining that a court must “identify the domain expressly pre-empted” by federal law (quoting Cipollone v. Liggett Grp., Inc., 505 U.S. 504, 517 (1992))); Roth v. Norfalco LLC, 651 F.3d 367, 375 (3d Cir. 2011) (same). And here, the Natural Gas Act‘s conferral of original and exclusive jurisdiction upon federal appellate courts is limited to “civil action[s].”
This Court has already considered the meaning of the term ‘civil action’ as used in the original-and-exclusive-jurisdiction clause. As explained in Township of Bordentown v. Federal Energy Regulatory Commission, that term refers only to civil court proceedings – not to matters before administrative agencies:
[A] “civil action” refers only to civil cases brought in courts of law or equity and does not refer to hearings or other quasi-judicial proceedings before administrative agencies.
But under the structure of Pennsylvania state government, the EHB is not a court. By the terms of its organic statute, the EHB is a “quasi-judicial agency,”
For further perspective, there will always be significant similarities between administrative adjudications and court proceedings. See Bordentown, 903 F.3d at 267 (explaining the long-standing principle that “administrative hearings, even to the extent that they in some ways mirror an adversarial trial, do not constitute proceedings in courts of law or equity“). Indeed, the EHB and state appellate courts may each affirm, modify, vacate, set aside, or reverse a PADEP permitting decision, and they may each remand the matter to PADEP.2 But the EHB does not follow the “general rules governing practice, procedure and the conduct” promulgated by the Pennsylvania Supreme Court for usе in Pennsylvania courts.
Despite the EHB possessing the powers of an administrative agency, Transco argues that the EHB qualifies as a ‘court’ so that an administrative appeal to the EHB constitutes a ‘civil action.’ Transco grounds its position in three attributes of the relevant statutory framework: (i) the EHB‘s structural independence from PADEP; (ii) the EHB‘s authority to conduct discovery and to reach its own conclusions on permits; and (iii) the right of an adversely affected person to challenge PADEP permitting decisions directly in this Court without first filing an administrative appeal to the EHB.
To support its assertion that the EHB should be construed as a court because of its structural independence from PADEP, Transco relies on the Bordentown decision. That case rejected preemption challenges to the administrative appeal process under New Jersey law for Clean Water Act permitting decisions for interstate natural gas pipelines. See Bordentown, 903 F.3d at 267–69. That process involves “internal administrative review” under which the same agency that made the initial decision also
Transco misreads Bordentown. That decision‘s rejection of the preemption challenge was not contingent on New Jersey‘s internal administrative review process. Rather, after surveying the caselaw and examining the original-and-exclusive-jurisdiction clause, Bordentown explained that “[t]he only plausible conclusion to draw from these cases and from the text of the statute itself is that § 717r(d)(1) does not preempt state administrative review of interstate pipeline permitting decisions.” Id. at 269. So instead of assisting Transco‘s position, Bordentown relied on a broader principle to reject preemption, viz., that administrative appeals of conditions or sub-conditions on Certificates of Public Convenience and Necessity imposed by state agencies are not preempted. See id. Applying that principle to Pennsylvania‘s administrative review process for Clean Water Act permits needed for interstate natural gas pipelines leads to the conclusion that the Natural Gas Act does not preempt administrative appeals to the EHB.
But even if the Bordentown holding were entirely contingent on the internal administrative appeal process used in New Jersey, that would not compel preemption in this case. That (incorrect) reading of Bordentown can be expressed as the following logical construct: ‘if internal administrative appeal, then no preemption.’ And Transco wants the inverse of that statement to also be true: ‘if no internal administrative appeal, then preemption.’ But the inverse of a true conditional statement is not necessarily true. See Ruggero J. Aldisert, Logic for Lawyers 163 (3d ed. 1997) (explaining that the logical fallacy known as “denying the antecedent of a conditional statement” occurs when the statement “‘if P then Q’ is taken to imply ‘if not P, then not Q‘“); see also Irving M. Copi & Carl Cohen, Introduction to Logic 306, 357 (9th ed. 1994) (explaining the same).3 So Transco‘s reading of Bordentown does not logically compel the conclusion that the Natural Gas Act preempts an administrative appeal from PADEP to the EHB of a Clean Watеr Act permitting decision regarding an interstate natural gas pipeline.
Even still, Transco argues that the outcome of this case must be different than in Bordentown. Transco points out that, in addition to being an external administrative appellate agency, the EHB has the power to develop a record through discovery and a hearing. Those powers, according to Transco, make the EHB a court. But that neglects that the EHB is an appellate body and that the development of a factual record in an appellate court is extremely rare. See Zenith Radio Corp. v. Hazeltine Rsch., Inc., 395 U.S. 100, 123 (1969) (explaining that district courts are better positioned to “appraise and weigh the evidence“); Fassett v. Delta Kappa Epsilon (New York), 807 F.2d 1150, 1165 (3d Cir. 1986) (“The only proper function of a court of appeals is to review the decision below on the basis of the record that was before
or by rule“).4 And unlike an appellate court, the EHB has those powers. See Pequea Township v. Herr, 716 A.2d 678, 686–87 (Pa. Commw. Ct. 1998) (explaining that if the EHB finds, based on the record created before the EHB, that PADEP abused its discretion, the EHB may substitute its discretion for that of PADEP). Thus, contrary to Transco‘s contention, the EHB‘s authority to develop a record and substitute its discretion for PADEP‘s makes it much more like an appellate administrative body than an appellate court.
Finally, Transco argues that because a PADEP licensing decision involving a Water Quality Certification for an interstate natural gas pipeline can be challenged in either this Court directly, see Riverkeeper III, 903 F.3d at 74–75, or through an administrative appeal to the EHB, see
B. An Administrative Appeal to the EHB Is Not Field Preempted.
Transco also relies on field preemption as a basis for enjoining the administrative appeal to the EHB. Under field preemption, federal law renders inoperative all state law in an area – even harmonious state regulatory efforts. See Oneok, Inc. v. Learjet, Inc., 575 U.S. 373, 377 (2015); Arizona, 567 U.S. at 399. Field preemption may be implied when federal law either occupies a field of regulation “so comprehеnsively that it has left no room for supplementary state legislation,” Murphy v. Nat‘l Collegiate Athletic Ass‘n, 584 U.S. 453, 479 (2018) (quoting R.J. Reynolds Tobacco Co. v. Durham County, 479 U.S. 130, 140 (1986)), or “touch[es] a field in which the federal interest is so dominant that the federal system will be assumed to preclude enforcement of state laws on the same subject,” Rice v. Santa Fe Elevator Corp., 331 U.S. 218, 230 (1947). Implicit in Congress‘s authority to define the preempted field is its ability to create express exceptions through anti-preemption clauses that carve out permissible areas of state regulation from an otherwise preempted field. See Pac. Gas & Elec., 461 U.S. at 212 (“[T]he federal government has occupied the entire field of nuclear safety concerns, except the limited powers expressly ceded to the states.“); Int‘l Paper Co. v. Ouellette, 479 U.S. 481, 492 (1987) (“Although Congress intended to dominate the field of pollution regulation, the saving clause negates the inference that Congress ‘left no room’ for state causes of action.“); Farina, 625 F.3d at 121 (recognizing that Congress may through a “savings provision” leave some room for state regulation in an otherwise preempted field).
Transco contends that the Natural Gas Act field preempts state regulation of interstate natural gas pipelines so as to
render inoperative the Pennsylvania statute,
But in analyzing field preemption, a court must “proceed cautiously, finding pre-emption only where detailed examination convinces [it] that a matter falls within the pre-empted field.” Oneok, 575 U.S. at 385. Here, such a detailed examination begins with recognizing that the field of state regulation preempted by the Natural Gas Act is not impervious to exceptions. See id. (emphasizing that the Natural Gas Act “was drawn with meticulous regard for the continued exercise of state power, not to handicap or dilute it in any way.” (quoting Panhandle E. Pipe Line Co. v. Pub. Serv. Comm’n of Ind., 332 U.S. 507, 517–18 (1947))). In particular, the Natural Gas Act has an anti-preemption clause that prеserves the rights of states granted by three other federal statutes:
Except as specifically provided in [the Natural Gas Act], nothing in [the Natural Gas Act] affects the rights of States under [the Coastal Zone Management Act, the Clean Air Act, or the Clean Water Act].
Still, that clause is not an airtight anti-preemption provision because it allows for the Natural Gas Act to limit the scope of state regulation under those three statutes. See
As a result of that anti-implied-preemption clause, only an express provision in the Natural Gas Act can preempt state regulation related to interstate natural gas pipelines under the Clean Water Act. Yet, as explained above, the Natural Gas Act does not contain such an express preemption provision to that effect. And without one, the provisions of the Clean Water Act that enable states to issue Water Quality Certifications, see
Transco presses the point, however. It insists that the extent of permitted state regulation under the anti-preemption clause is limited to PADEP‘s permitting decisions and does not include administrative appeals to a separate state agency, such as the EHB. But the preservation of state regulatory authority under an anti-preemption clause also allows states to “us[e] appropriate tools to exercise that authority.” Chamber of Com. v. Whiting, 563 U.S. 582, 601 (2011) (Roberts, C.J., plurality oрinion). And the Pennsylvania statute authorizing an administrative appeal to the EHB from PADEP permitting decisions under the Clean Water Act,
In sum, through the anti-implied-preemption clause in the Natural Gas Act, if state regulation is permitted under the Clean Water Act, then neither the regulation itself nor appropriate tools to effectuate that regulation are field preempted. Consequently, as a state procedure reasonably in furtherance of the preserved area of state regulation, an administrative appeal to the EHB of PADEP permitting decisions under the Clean Water Act related to interstate natural gas pipelines is not subject to field preemption.
C. Obstacle Preemption Does Not Bar Administrative Appeals of PADEP Permitting Rulings to the EHB.
Transco and PADEP also argue that an administrative appeal to the EHB poses an obstacle to the full attainment of purposes and objectives of the Natural Gas Act and must therefore be rendered inoperative as an implied conflict with federal law. See generally Geier v. Am. Honda Motor Co., 529 U.S. 861, 869, 874 (2000) (explaining that even though an anti-preemption clause may save state law from being expressly preempted, that does not preclude a finding of conflict preemption (citing Freightliner Corp. v. Myrick, 514 U.S. 280, 288–89 (1995))); Fid. Fed. Sav. & Loan Ass‘n v. de la Cuesta, 458 U.S. 141, 153 (1982) (“Even where Congress has not completely displaced state regulation in a specific area, state law is nullified to the extent that it actually conflicts with federal law.”).6 Under obstаcle preemption, when a state law “stands as an obstacle to the accomplishment and execution of the full purposes and objectives” of a federal law,” that rises to the level of a conflict for which preemption may be implied. Williamson v. Mazda Motor of Am., Inc., 562 U.S. 323, 330 (2011) (quoting Hines v. Davidowitz, 312 U.S. 52, 67 (1941)); see also Geier, 529 U.S. at 884 (explaining that conflict preemption is a form of implied preemption).
Here, both Transco and PADEP infer from the original-and-exclusive-jurisdiction clause, see
Through different approaches, Transco and PADEP each assert that EHB dispositions are not directly reviewable in this Court, and as a result, an administrative appeal to the EHB presents an obstacle to streamlined review in federal appellate court. Transco argues that the original-and-exclusive-jurisdiction clause in
a. Purported Un-Reviewability Based on § 717r(d)(1)
Transco bases its un-reviewability assertion on the text of the original-and-exclusive-jurisdiction clause. In addition to ‘civil action,’ several other terms in that clause bound the subject-matter jurisdiction conferred by
The United States Court of Appeals for the circuit in which a facility subject to section 717b of this title or section 717f of this title is proposed to be constructed, expanded, or operated shall have original and exclusive jurisdiction over any civil action for the review of an order or action of a Federal agency (оther than the Commission) or State administrative agency acting pursuant to Federal law to issue, condition, or deny any permit, license, concurrence, or approval (hereinafter collectively referred to as “permit”) required under Federal law, other than the Coastal Zone Management Act of 1972 . . ..
For the term, ‘issue,’ Transco emphasizes that the Natural Gas Act authorizes judicial review of only the agency decisions that “issue, condition, or deny any permit, license, concurrence, or approval.”
At the outset, Transco‘s argument is incomplete because it ignores the disjunctive listing of the agency actions subject to judicial review: the statute applies to state agency orders that “issue, condition, or deny” permits.
But it is not only EHB decisions that condition or deny permits related to interstate natural gas pipelines that may be challenged in this Court. The original-and-exclusive-jurisdiction clause applies to the issuance, conditioning, or denial of “any permit, license, concurrence, or approval.”
As a variation on a theme, Transco contends that the ‘pursuant to’ phrase also prevents judicial review in federal appellate court of EHB dispositions. By its terms, the original-and-exclusive-jurisdiction clause allows review of the orders of state administrative agencies but only when those agencies act “pursuant to Federal law.”
That assertion disregards the field preemptive effect of the Natural Gas Act. Because the Natural Gas Act generally displaces state law in the field of interstate-natural-gas-pipeline regulation, see Schneidewind, 485 U.S. at 300, 306–10, any state regulatory action on that subject matter occurs only by virtue of the anti-preemption clause, see
§ 717n
PADEP’s theory of obstacle preemption rests on a different codified provision of the Natural Gas Act,
The problem with PADEP’s argument is that it assumes the incompleteness of the original-and-exclusive-jurisdiction clause so that the definition of ‘Federal authorization’ in
In sum, the identified provisions of the Natural Gas Act – in particular the terms ‘issue’ and ‘pursuant to’ as well as the administrative record requirements in
2. The Possibility of Multiple Challenges in Different Fora to PADEP Permitting Decisions Under the Clean Water Act for Interstate Natural Gas Pipelines Does Not Impose an Obstacle to the Purposes of the Natural Gas Act.
PADEP also raises a practical сoncern – multiplicity of suits – that it contends presents an obstacle to the achievement of the purposes and objectives of the Natural Gas Act. PADEP‘s permitting decisions required for a Certificate of Public Convenience and Necessity may be challenged through two separate mechanisms: an administrative appeal to the EHB, see
PADEP‘s concern is legitimate. But it is not sufficiently grounded in a conflict between federal and state law. By allowing state regulation under the Clean Water Act, see
Those multiple purposes of the Natural Gas Act hinder the implication of obstacle preemption. When a federal statute has multiple purposes that are in partial tension with one another, that statute should not be construed to impliedly preempt state regulatory efforts in conflict with one of the statute‘s purposes if that state regulation furthers another of the statute‘s principal purposes. See Whiting, 563 U.S. at 601 (Roberts, C.J., plurality opinion) (explaining that a state law that implements a program that Congress expressly permitted is not in conflict with federal law); see also Bonito Boats, Inc. v. Thunder Craft Boats, Inc., 489 U.S. 141, 166–67 (1989) (“The case for federal pre-emption is particularly weak where Congress has indicated its awareness of the operation of state law . . . and has nonetheless decided to ‘stand by both concepts and to tolerate whatever tension there [is] between them.’” (second alteration in original) (quoting Silkwood v. Kerr-McGee Corp., 464 U.S. 238, 256 (1984))); Williamson, 562 U.S. at 335 (rejecting an argument that a stricter state safety standard was conflict preempted since the statute contemplated a “continued meaningful role for state tort law”). And here, the possibility of multiple, separate challenges in different fora on different administrative records is a byproduct of the anti-preemption clause in the Natural Gas Act, which allows states to retain their powers under the Clean Water Act with respect to interstate natural gas pipelines. See
3. As a Form of Implied Preemption, Obstacle Preemption Is Foreclosed by the Anti-Implied-Preemption Clause.
Finally, even if Transcо and PADEP’s concerns otherwise posed an obstacle that could justify conflict preemption, the original-and-exclusive-jurisdiction clause would still prevent implied preemption. As explained above, the Natural Gas Act’s anti-preemption clause prevents all forms of implied preemption of state regulation within its scope. And because that clause permits state regulation of interstate natural gas pipelines under the Clean Water Act, no such state regulation may be impliedly preempted. See
III. CONCLUSION
For the foregoing reasons, Transco and PADEP‘s preemption arguments fail as a matter of law, and therefore it is not necessary to address the remaining preliminary-injunction considerations to affirm the denial of Transco‘s motion. See Munaf, 553 U.S. at 691.