Earlier this month, the United States District Court for the Middle District of Pennsylvania held that Section 717b(d) of the Natural Gas Act (NGA), 15 U.S.C. § 717b(d), authorizes states to continue issuing permits under the federal Clean Water Act (CWA) to interstate natural gas transmission facilities. It further held, however, that Section 717r(d)(1) of the NGA, 15 U.S.C. § 717r(d)(1), makes review of all such permits the province of the United States Court of Appeals, and not of state administrative tribunals.
In Tennessee Gas Pipeline Co. v. Delaware Riverkeeper Network et al., No. 3:13-cv-46 (Feb. 5, 2013), Judge Robert D. Mariani granted Plaintiff’s motion for a preliminary injunction and enjoined the Pennsylvania Environmental Hearing Board (EHB) from reviewing an Erosion and Sediment Control General Permit (ESCGP-1) and two Water Obstruction & Encroachment Permits that the Pennsylvania Department of Environmental Protection (DEP) issued to the Tennessee Gas Pipeline Company (TGP) in connection with TGP’s Northeast Upgrade Project.
In reaching that result, the Court concluded that (1) the permits at issue either constituted or were sufficiently related to CWA certifications to qualify them for the exception to preemption of state review of permits for interstate natural gas transmission facilities set forth in Section 717b(d) of the NGA; and (2) DEP is the “State administrative agency” under Section 717r(d)(1) of the NGA, but the EHB is not, meaning that the Third Circuit (and not the EHB) has original and exclusive jurisdiction over any review of a DEP permitting action required under the CWA.
There are no clear winners in this case. TGP dodges a potentially lengthy appeal of its permits before the EHB, which conducts its hearings de novo, but cannot evade the DEP permitting process. DEP retains its authority to issue permits to interstate natural gas transmission facilities, provided those permits are required under federal law, but must defend those permits in federal court without the kind of administrative record that is typically developed in an appeal before the EHB. And the environmental advocates may still have an opportunity to challenge state environmental permits issued to interstate natural gas transmission facilities before the Third Circuit, but are prohibited from pursuing their appeal of those permits before the EHB.
There is a clear loser in this case. The EHB must relinquish its jurisdiction over the review of all DEP permits issued to interstate natural gas transmission facilities. Considering the proliferation of these facilities across Pennsylvania occasioned by the increase in natural gas development, review of such permits might otherwise have kept the EHB quite busy in the years ahead.