THE Delaware Riverkeeper, Maya van Rossum, along with a couple of radicals from Lancaster County flying under the name Lancaster Against Pipelines (the Clatterbucks), hoped they could convince the U.S. Supreme Court to consider a case that a series of lower courts dismissed–a case that would shut down the now-operating Atlantic Sunrise Pipeline (see Riverkeeper Appeals Atlantic Sunrise Lawsuit to US Supreme Court). Miss Maya and the Clatterbucks have stuck out. On Monday, the Supremes told them they don’t have a case.
In May 2016, three Big Green groups–THE Delaware Riverkeeper, Lancaster Against Pipelines and the Sierra Club–conspired and sued the Pennsylvania Dept. of Environmental Protection (DEP) saying the DEP erred in granting federal Clean Water Act “401” stream crossing permits for Williams’ Atlantic Sunrise Pipeline project (see Dela. Riverkeeper Launches Lawsuit Against Atlantic Sunrise Project). It took nearly two and a half years, but last September, the U.S. Court of Appeals for the Third Circuit finally tossed the lawsuit (see Riverkeeper Lawsuit Against Atlantic Sunrise Tossed by Fed Court).
Atlantic Sunrise pipeline went online last September (see Atlantic Sunrise Pipeline Slightly Delayed, Ready by Sept 10), and has, along with several other pipelines, resulted in a big increase in the price drillers now receive for their northeast PA Marcellus gas.
How and why THE Delaware Riverkeeper is even involved in attempting to block this project is a mystery. Not one inch of Atlantic Sunrise passes through the Delaware River Basin, which is Riverkeeper’s stated remit in their documents of nonprofit incorporation. How could the courts allow Riverkeeper to sue, when the organization has no compelling interest? No dog in this fight. But we digress.
Riverkeeper and Lancaster Against Pipelines, using money from the William Penn Foundation and Heinz Endowments, appealed the case to the U.S. Supreme Court. And now they’ve lost:
The U.S. Supreme Court on Monday refused to consider arguments from environmental groups that the Third Circuit lacks jurisdiction to review a Pennsylvania water quality permit for the Atlantic Sunrise gas pipeline expansion project.
The court’s denial of certiorari leaves intact the circuit court’s determination that it has jurisdiction to review the Pennsylvania Department of Environmental Protection’s decision to grant a Clean Water Act certification for the project. The Third Circuit in September said it agreed with the merits of the state’s move to grant the certification for the Transcontinental Gas Pipe Line Co. LLC project.
As is customary, the high court didn’t provide an explanation for its denial of certiorari.
Environmental groups including Delaware Riverkeeper Network had asked the high court to review the outcome in January, arguing that the DEP’s 2016 certification for the pipeline expansion across the eastern part of the state wasn’t final — a status necessary before the Third Circuit could act.
The environmental groups had argued that the Third Circuit, though granted review power by the Natural Gas Act, didn’t have jurisdiction because the certification wasn’t final until the state’s Environmental Hearing Board ruled on the matter. They also claimed the DEP violated the law by granting the certification in 2016 and letting it take effect immediately, even though it was supposed to be contingent on actions that would occur down the road.
The Third Circuit disagreed with these arguments. It said the DEP’s decision constituted a final action because the board is an entirely separate entity that does not stop the department’s decision from taking effect. Once the decision was final, the Natural Gas Act gave the Third Circuit exclusive jurisdiction over such appeals, the panel said.
“The department’s decision here was immediately effective, notwithstanding petitioners’ appeals to the EHB,” U.S. Circuit Judge Thomas M. Hardiman wrote in September. “The department and the board are entirely independent agencies. Each conducts a separate proceeding, under separate rules, overseen by separately appointed officers … PADEP’s issuance of a water quality certification is that agency’s final action, leaving nothing for the department to do other than await the conclusion of any proceedings before the board.”
The panel also rejected the argument that the state had not given adequate notice of the pipeline project’s pending certification under the Clean Water Act, as well as eminent domain-related challenges and state constitutional objections.
The Delaware Riverkeeper Network and others in 2016 challenged the DEP’s certification, before the Third Circuit and Lancaster Against Pipelines had appealed the decision to the Environmental Hearing Board, according to court filings. The board stayed proceedings pending a jurisdictional ruling from the Third Circuit.
The environmental groups had tried to convince the high court that state-based reviews needed to be done first.
“Here, Pennsylvania has enacted a comprehensive regulatory and administrative scheme for the protection of the environment within the commonwealth, and, pursuant to this structure, the water quality certificate at issue was not ‘final,’” according to the certiorari petition.
The environmental groups said there was a circuit split on the issue, which also conflicted with Third Circuit precedent about what constituted a finalized state review. The pipeline company in its opposition brief disagreed, saying the decisions cited by the groups reflected a different state review processes and not a different standard.
“The Third Circuit performed a straightforward jurisdictional analysis under the Natural Gas Act using a federal finality standard that is fully consistent with the decisions of this court and other federal courts, including the cases petitioners cite from the First, Second and Third Circuits,” the pipeline company’s opposition brief said in March.
The Atlantic Sunrise project consists of pipeline additions or modifications in Maryland, Pennsylvania, North Carolina, South Carolina and Virginia. The project will add 1.7 million dekatherms per day of pipeline capacity — enough to serve 7 million more homes — to the company’s existing system, according to information on the project’s website. The company says the project involves a nearly $3 billion private investment.
Keith Isbell, a spokesperson for Transco parent Williams Cos., said he was pleased but not surprised the high court declined to take the case, noting that the pipeline is already in service.
“As part of the review process for this important energy infrastructure project, the Pennsylvania DEP undertook a very thorough review of the project’s permit applications,” Isbell told Law360. “The Third Circuit thereafter properly asserted jurisdiction and in a well-reasoned opinion upheld the agency’s actions.”
A representative with the Delaware Riverkeeper did not immediately return a request for comment Monday.*
*Law360 (Apr 29, 2019) – Supreme Court Won’t Review Pa. Pipeline Permit Fight
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