Delaware Riverkeeper Anger with DEP for Approving Pipeline Is No Excuse

Tom Shepstone
Shepstone Management Company, Inc.

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The courts are ever more onto the Delaware Riverkeeper game of delay and harassment and growing weary with the phony claims intended to shutdown pipelines.

A beautiful court decision just came down from the Federal Eastern District Court for Pennsylvania regarding yet another Delaware Riverkeeper a/k/a PovertyKeeper act of harassment. The conclusion is about all one needs to read (emphasis added):

In sum, it is evident that the real object of Plaintiffs’ ire is DEP for allowing Sunoco to construct ME2. I have closely reviewed DEP’s determinations and concluded that they are not only entitled to deference, they are correct. ME2’s construction has been subject to the fullest regulation. Neither the law nor the courts may penalize Sunoco for acceding to that regulation.

Judge Paul S. Diamond dismissed the Delaware Riverkeeper complaint with prejudice. He’s clearly tired of the stupid game Maya van Rossum is playing with money from the William Penn Foundation and other elitist trust-funders.

delaware riverkeeper

James A. Byrne U.S. Courthouse – Home of the United States District Court for the Eastern District of Pennsylvania

The introduction to Judge Diamond’s dismissal is every bit as acerbic. Diamond has had it with Delaware Riverkeeper attempts to tie up his court with nonsense. He knows Maya:

The Delaware Riverkeeper Network and “Riverkeeper” Maya van Rossum charge that Sunoco Pipeline L.P. violated the Clean Water Act when the Company did not seek a federal permit for its Mariner East II Pipeline Project after regulatory authorities advised that because only a nearly identical state permit was required, they would not issue a federal permit. Surely Plaintiffs’ allegation refutes itself. Even the byzantine regime of environmental regulation imposes neither such a pointless requirement nor a penalty for its “violation.” Because Plaintiffs’ dispute is really with the regulatory authorities and not Sunoco, I will grant Sunoco’s Motion for Summary Judgment, deny Plaintiffs’ Cross-Motion, and dismiss this matter.

As is our custom, I’ve highlighted the most relevant parts of the opinion, which may be found here. And, here are a few more tidbits (emphasis added and citations deleted):

Plaintiffs’ Amended Complaint and subsequent contentions are less than clear. They concede that Sunoco was not required to obtain an NPDES stormwater permit at the outset of ME2’s construction… Rather, they apparently argue that the Company was obligated to obtain the permit after construction began

It thus initially appears that Plaintiffs have simply ignored DEP’s admonition that “[i]f Sunoco had applied for an NPDES permit for the [ME2] construction project, the Department would not have issued it.”

Yet, Plaintiffs nowhere explain what Sunoco should have done in response to DEP’s interpretation of the regulations it administers and its unambiguous directions to Sunoco. Plaintiffs themselves did not object to those directions until years later (with the filing of the instant action).

In fact, Plaintiffs initially challenged only the substance of the DEP-issued E&S permits, never arguing that DEP mistakenly required only a state permit. Plaintiffs apparently now believe that the CWA obligated Sunoco to challenge the Department’s decision, presumably by suing the Department, the sole entity authorized to issue permits. Once again, the contention refutes itself.

First, Plaintiffs offer no authority—and I can find none—obligating Sunoco to sue DEP in the circumstances presented. To the contrary, the law obligated the Company to follow the Department’s directions. Moreover, it is evident that DEP’s permitting decisions—closely monitored and supervised by the EPA—warrant some degree of deference. Indeed, even if reviewed de novo, DEP’s actions plainly were correct. Finally, imposing liability on the Company for failing to seek a permit that DEP would have refused to issue defies reason and fairness

Plaintiffs’ expert testified that he was unaware of DEP ever issuing an NPDES stormwater permit for a pipeline project, that he could not name which (if any) NPDES permit would be appropriate for IRs [inadvertent returns], and that he knew of no substantive differences between E&S and NPDES permits

Plaintiffs neither petitioned the EPA Director to require Sunoco to obtain a NPDES permit, nor argued in their Environmental Hearing Board appeal of Sunoco’s Chapter 102 and 105 permits that DEP should have issued NPDES permits. Rather, they resolved their appeal by accepting a role on DEP’s “workgroup” formed to assess E&S permitting requirements.

Only later did Plaintiffs initiate this citizen suit, raising many of the same discharge allegations that Sunoco had already settled with DEP, and challenging DEP determinations to which Plaintiffs had previously raised no protest.

Such litigation tactics do nothing to protect the environment.

Nor is Plaintiffs’ apparent effort to revisit and supplant the Department’s enforcement actions appropriate. This is certainly why the Supreme Court has admonished that “the citizen suit is meant to supplement rather than to supplant governmental action.”…

I will not disturb the Department’s entirely reasonable interpretation of the Act, its implementing regulations, and Pennsylvania law. Nor will I overturn DEP’s corresponding permitting decisions, especially in the absence of authority requiring NPDES permits for IRs.

Moreover, imposing liability on Sunoco for failing to secure NPDES permits would offend basic principles of fairness and effect an absurd result.

Requiring Sunoco to apply for a permit that DEP would not issue would be compelled futility.

The judge words speak for themselves but notice how, yet again, a Delaware Riverkeeper expert failed to convince a court. This is a recurrent pattern. Why? Because the Delaware Riverkeeper positions are generally indefensible from either a legal or scientific perspective. Notice, too, how the court has picked up on the fact the PovertyKeeper is harassing government, rather than seeking to complement it. That’s because, of course, the intent is always simply to delay and to kill projects via delay by making them extraordinarily difficult and expensive. A legal win is irrelevant if the delay resulting from the harassment gets the job done anyway.

This is the Delaware Riverkeeper strategy in a nutshell. It’s despicable on every level and it’s financed by the William Penn Foundation and Maya’s special interest friends such as R. Bruce Wallace. How long before the industry rises to the challenge and challenges the tax-exemptions of these enablers of injustice?

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2 thoughts on “Delaware Riverkeeper Anger with DEP for Approving Pipeline Is No Excuse

  1. If the Riverkreepers were required to pay defendant’s legal fees and court costs, everytime they lose, maybe they would stop the nonsense.

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