Third Circuit Court of Appeals Vindicates Right of Environmental Organizations to Challenge the Transco REAE Pipeline

Tuesday, July 9, 2024, Philadelphia, P.A.— The United States Court of Appeals for the Third Circuit has sided with environmental organizations, vindicating their right to challenge permits issued to the Transcontinental Gas Pipe Line Company, LLC (Transco) before the Pennsylvania Environmental Hearing Board. The Third Circuit affirmed that the Pennsylvania Environmental Hearing Board (PA EHB) has jurisdiction to hear appeals of state permits issued as part of gas pipeline projects. As a result, the legal challenge brought by the Delaware Riverkeeper Network and Citizens for Pennsylvania’s Future (PennFuture) before the PA EHB can proceed. Notably, the Pennsylvania Department of Environmental Protection (PADEP) had joined with Transco in seeking to prevent the Delaware Riverkeeper Network and PennFuture from challenging state permits granted to the pipeline project.  The Third Circuit rejected Transco and PADEP’s argument that any legal challenge to the state-issued administrative environmental permits must exclusively be brought before a federal court.  

“It was quite disturbing that the PADEP sought to strip its own state Environmental Hearing Board of legal authority over permit decisions. Unfortunately, when it comes to natural gas pipelines, it is common that environmental organizations like the Delaware Riverkeeper Network and PennFuture don’t just have to face down the monumental financial and legal resources of the pipeline companies themselves, but routinely the state government and the federal government sides with the pipeline companies against the people. But in this case, the courts have rightly sided with the people. In short, 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,” said Maya van Rossum, the Delaware Riverkeeper, and leader of the Delaware Riverkeeper Network. “We look forward to the opportunity to make our case before the PA 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 that Pennsylvania’s 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 Managing Attorney for Litigation. “We will continue to push back against Transco’s attempt to evade review, and we will continue to challenge these permits that degrade Pennsylvania’s special protection waters.” 

“Today’s decision is a resounding victory for Pennsylvanians whose environmental rights are jeopardized by natural gas pipeline construction. The Third Circuit confirmed that the federal Natural Gas Act does not prevent our Environmental Hearing Board from reviewing pipeline permits issued by the Department of Environmental Protection. The ability to administratively appeal these pipeline permits gives Pennsylvanians the power to challenge bad decisions by the DEP—just as they would be able to for any other permit,” said Kacy Manahan, Senior Attorney representing van Rossum and the Delaware Riverkeeper Network and who was the lead attorney defending against the Transco lawsuit.
 
The administrative appeal at issue was brought by the Delaware Riverkeeper Network, the Delaware Riverkeeper Maya van Rossum, and PennFuture 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 PA EHB.  The permits 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. 
  
Transco and PADEP challenged the environmental organizations’ appeal by filing a complaint in the U.S. District Court for the Middle District of Pennsylvania, asserting that the PA EHB 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 yesterday’s precedential opinion, the Third Circuit rejected Transco’s arguments and upheld the authority of the PA 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 Clean Water Act regulation for natural gas pipeline infrastructure.