US District Court for the Middle District of Pennsylvania Enjoins PA Environmental Hearing Board From Hearing Appeal of State-Issued Environmental Permits
In Tennessee Gas Pipeline Co., L.L.C. v. Delaware Riverkeeper Network, et al, No. 3:13-cv-46 (Feb. 5, 2013), Judge Robert D. Mariani issued an opinion granting an injunction sought by Tennessee Gas Pipeline Company, L.L.C. (“Tennessee”) an interstate natural gas pipeline company, against proceedings in the Pennsylvania Environmental Hearing Board (“EHB”) on appeals filed by Delaware Riverkeeper Network and others (“Riverkeeper”) of three state environmental permits, two Ch. 105 permits and an ESCGP-1 permit.
The court found that the case was not one that turned on general preemption under the Natural Gas Act, 15 U.S.C. 717-717z (“NGA”), but instead required an analysis of the interplay between the NGA and the Clean Water Act, 33 U.S.C. §1251, et seq. Tennessee was required by the terms of its Certificate Order from the Federal Energy Regulatory Commission (“FERC”) to obtain the permits. The Court found that the three permits were interrelated, and that separate reviews of the permits could lead to conflicting outcomes and would be judicially cumbersome. The Court rejected arguments from Riverkeeper and DEP that the permits were not final until the EHB process was complete. Instead, the Court found that Section 717r(d)(1) of the NGA provides for federal judicial review of “an order or action” by a state administrative agency, and does not mandate that judicial review wait until a “final” agency decision under state law has been rendered. The Court also found that 1) the balance of the equities in the matter favored Tennessee because of the urgency of the construction timetable and that 2) there was a benefit to the public interest in terms of jobs for the local economy, increased revenues for Pennsylvania and New Jersey and availability of natural gas for residents of Pennsylvania and New Jersey during peak winter months.
The Riverkeeper has now been unsuccessful in obtaining a stay of construction of the project from the FERC, from the EHB or from the DC Circuit, where an appeal by them of Tennessee’s FERC Certificate is pending.