PENNSYLVANIA — The United States District Court for the Middle District of Pennsylvania has once again sided with environmental interests by granting their motion to dismiss the federal case that had been filed by Transcontinental Gas Pipe Line Company, LLC seeking to prevent the Pennsylvania Environmental Hearing Board from hearing an appeal of state permits issued to the company’s Regional Energy Access Expansion project. The court’s decision, issued December 22, just before the holidays, notably, and in part, reads:

“Transco’s request for relief is predicated upon an erroneous interpretation of federal law.” 

Quoting case law the court goes on: “the NGA leaves untouched the state’s internal administrative review process, which may continue to operate as it would in the ordinary course under state law.”

The appeal at issue was brought by the Delaware Riverkeeper Network, the Delaware Riverkeeper Maya van Rossum, and Citizens for Pennsylvania’s Future seeking to challenge state permits that provided the underlying basis for the Pennsylvania’s Clean Water Act approval (what is known as 401 certification) of the Transco REAE pipeline. Following the usual protocol for legal appeal of state permitting, the organizations brought their appeal of the permits before the Pennsylvania Environmental Hearing Board.  The permits and associated 401 Certification being challenged are not only required for the project to advance within Pennsylvania, but are also an underlying requirement of the Federal Energy Regulatory Commission (FERC) Certification of the project. Without the state authorization, the FERC Certification is no longer legally secure. The company challenged the environmental organizations’ appeal, asserting that the Pennsylvania Environmental Hearing Board had no jurisdiction to hear administrative appeals of state issued permits involving FERC regulated natural gas pipeline infrastructure, and that instead, any legal challenge had to proceed before the Federal Third Circuit Court of Appeals. In today’s determination, the Middle District rejected Transco’s arguments and upheld the authority of the Pennsylvania EHB to review the challenged permitting, and in so doing, it strengthened the rights of a state, in this case the Commonwealth of Pennsylvania, to have primary legal authority regarding state permitting for natural gas pipeline infrastructure.

“This victory validates and secures the rights of impacted communities to challenge state issued approvals to natural gas pipelines through their own state’s administrative appeals process, rather than having to leap frog to the federal court system where the pipeline companies and FERC, which are generally aligned and working in collaboration, have much greater access, resources and sway to press their position,” said Maya van Rossum, the Delaware Riverkeeper, and leader of the Delaware Riverkeeper Network.  “When it comes to natural gas pipelines, the federal government has already severely curtailed the rights of states and people to protect themselves. Over a period of decades, FERC has expanded its own authority when it comes to natural gas pipeline infrastructure, and at the same time strengthened the ability of pipeline companies to withstand the legal authority of states, other federal regulatory agencies, and court challenges brought by impacted community members. A contrary ruling from the Middle District would have expanded this inequity.”

Ms. van Rossum adds: “We look forward to the opportunity to make our case before the Pennsylvania EHB that the permits granted to Transco should be vacated and the project should not be allowed to proceed.” 

“Every single court that has reviewed this issue to this point has found the Pennsylvania Environmental Hearing Board can take up this appeal and review Transco’s plans to cross and impact multiple miles of Pennsylvania’s special protection waters,” said Jessica O’Neill, PennFuture’s Senior Attorney. “We will continue to push back against Transco’s attempts to evade review, and we will continue to challenge these permits that degrade Pennsylvania’s special protection waters.”

“Today’s win means that Transco’s permit will continue to be reviewed by the Environmental Hearing Board just like any other permit issued by the Department of Environmental Protection in Pennsylvania. Our unique tripartite administrative system helps ensure compliance with Pennsylvania’s environmental statutes, regulations, and Pennsylvania’s constitutional Green Amendment, Article I, section 27,” Kacy Manahan, Senior Attorney representing van Rossum and the Delaware Riverkeeper Network and who was the lead attorney defending against the Transco lawsuit.