Two Pennsylvania environmental organizations scored a big win last week when the United States Court of Appeals for the Third Circuit supported their right to challenge permits issued to the Transcontinental Gas Pipe Line Company, LLC (Transco) before the Pennsylvania Environmental Hearing Board (PA EHB).
Now the legal challenge brought by the Delaware Riverkeeper Network and Citizens for Pennsylvania’s Future (PennFuture) before the PA EHB can proceed. The decision affirms the jurisdiction of the the Board to hear appeals of state permits issued as part of gas pipeline projects.
The Project is an expansion of Transco’s existing natural gas transmission system and will consist of new pipelines, a new gas-fired turbine driven compressor station, addition of gas-fired turbine driven compressor units at existing compressor stations, modification and uprate of existing compressors, abandonment of existing gas-fired compressors, and more.
The proposed pipeline expansion will extend across three Pennsylvania Department of Environmental Protection (DEP) regions: 3 counties in the Northeast Region (Luzerne, Monroe, Northampton), 3 counties in the Southeast Region (Bucks, Chester, Delaware), and 1 county in the Southcentral Region (York).
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.
This ruling does not give the state primary legal authority. “It ensures that the Environmental Hearing Board is not stripped of its authority to review pipeline permitting of this kind and ensures that the people of Pennsylvania maintain their right to challenge permitting through the normal permit appeals process,” said Maya van Rossum, the Delaware Riverkeeper, and leader of the Delaware Riverkeeper Network.
Rossum said it will ensure that the people of Bucks County maintain their ability to challenge pipeline permitting through the state process rather than being forced to the federal court system.
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“It ensures the people of Pennsylvania to make their case before the EHB versus being forced immediately into the federal system,” added Rossum. “It is always an effort to challenge a permit, but the state process can be more accessible and there is a greater opportunity to create a record of evidence upon which the claims of the people will be judged when they go through the regulatory review at the state level.”
Jessica O’Neill, PennFuture’s Managing Attorney for Litigation, said in a phone interview this is about state agency reviewing permits it has issued for a fracked gas pipeline – do all challenges to those permits have to be before the Federal court?
“The question is: what kind of power does the state still have given the Natural Gas Act?” said O’Neill. “The Natural Gas Act is the federal statute that’s at issue here. And what the pipeline company was trying to say was that the Natural Gas Act made it such that the regular permitting process that you go through for a pipeline like this – where a state agency issues a permit – and then folks who are concerned about that permit can challenge it before the state administrative process, doesn’t apply anymore, that you can’t go before the state administrative process. And in Pennsylvania, that’s the Environmental Hearing Board to challenge those permits.”
Who gets to have the final say? Who gets to review these permits?
“Is it the state administrative process that does this all the time? Or does federal law swoop in and say, no state – you’re cut out,” said O’Neill. “This has to be only before the Federal Court of Appeals.”
O’Neill said they think that’s really important because in Pennsylvania “we have an excellent environmental hearing board that’s used to hearing these challenges and reviewing these technical issues. We have our Environmental Rights Amendment that makes clear that the Commonwealth is a trustee — in these public natural resources, people have a right to clean air and clean water, and the state needs to take those rights into account when evaluating permits like this.”
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“Transco wants to smooth out any challenges to that pipeline as much as it can,” said O’Neill. “I thought it would have an easier time in the Federal Court than this searching review of the permits before the Environmental Hearing Board. The state has changed its position on this–this issue has been going on for a while before this case–pipeline companies and the state and environmental groups had been working this issue for a long time–trying to clarify the law on where these challenges should be.”
Several years ago, PADEP agreed with the environmental groups that these challenges were properly before the state Environmental Hearing Board. O’Neill said that at some point, it changed its position.
“They fell into the same position as Transco – let’s make this easier,” laughed O’Neill. “Making review of a permit easier doesn’t necessarily make that permit better. We view this challenge as challenging the permits because we don’t think they’re good enough, stringent enough and that the requirements are restrictive enough – that they have enough conditions imposed on them to protect the environment, the streams and the wetlands that this pipeline is crossing from being negatively impacted by this pipeline.”
In PennFuture’s view, it’s not about getting through the challenge to the permit as quickly or as efficiently as possible. It’s making sure that the permit is right and making sure that the appropriate folks have all the evidence that it needs to evaluate if it’s a good permit.
O’Neill said they have been to court while this challenge in the federal court was pending.
“The courts all had refused to stay the proceeding before the Environmental Hearing Board, meaning that no one stopped,” she said. “The courts chose not to stop our challenge before the Environmental Hearing Board, so we have been proceeding with that challenge, and we are going to a hearing in September on the merits of our challenge to Transco’s permit.”
PennFuture and the Delaware Riverkeeper Network will be before the PA EHB in mid-September presenting their expert evidence and their case regarding why they believe that these permits were issued wrongly.
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“One of the bottom lines here is that this pipeline goes through multiple exceptional value streams and wetlands, meaning the highest quality waterways that we have,” said O’Neill. “It’s incredibly important to carefully review anything that might degrade those waterways.”
She explained that because Pennsylvania’s most protected spaces are affected by these pipeline projects, it is imperative that the DEP and Environmental Hearing Board conduct thorough and searching reviews on potential impacts to our public resources.
“Waters are designated as ‘special protection’ because they are just that – special,” said O’Neill. “These are high quality, clean water streams that provide critical habitat and some of the most pristine waters in the Basin. Protecting these headwaters is necessary for downstream drinking water resources, local recreation and tourism, and for billions of dollars in regional economic activity and ecosystem services.”
