The Delaware Riverkeeper Loses Yet Again with Shovelful Legal Strategy

natural gas now - Tom Shepstone ReportsTom Shepstone
Shepstone Management Company, Inc.

The Delaware Riverkeeper tries a “shovelful against the wall” legal strategy with the Atlantic Sunrise pipeline at the 3rd Circuit and loses yet again.

“Throw a shovelful against the wall and see what sticks,” is the prototype legal strategy for environmental extremists funded by the bottomless pit gentry class. The Delaware Riverkeeper, financed by the William Penn Foundation to make mischief with respect to Pennsylvania pipeline development, used this strategy in a recent appeal of the Atlantic Sunrise (a/k/a Transco) water quality certification issued by Pennsylvania DEP.

It didn’t work. The Delaware Riverkeeper a/k/a Povertykeeper lost every argument, proving that bovine excrement, in contrast to popular opinion, sometimes doesn’t even leave so much as a stain on the wall. More importantly, the three-judge panel that cleaned up the wall using a power washer was composed of the same three judges who decided the Wayne Land & Mineral Group appeal and wisely remanded that case to Scranton; namely Judges Hardiman, Jordan and Scirica. They have Maya’s number.

Delaware Riverkeeper

Delaware Poverykeeper?

A highlighted copy of the decision may be found here. The petitioners included the Delaware Riverkeeper Network and, as always with these matters, “Delaware Riverkeeper Maya Van Rossum” who cannot resist attaching her personal name to everything as if she was the Greek Goddess of Obstruction. Lancaster Against Pipelines got in the act, too, with Delaware Riverkeeper radical lawyer Jordan Yeager representing them, we’re told, although a visit to their website suggests they had little or no money to pay him.

The Delaware Riverkeeper arguments are a hodge-podge, as is typical with its and her shovelful legal strategy. Much of it was process oriented, with all sorts of arcane attempts to stretch of the law. It included attempts to argue the court didn’t have jurisdiction even though the Povertykeeper was there to make its arguments. It also reflected yet another attempt to make something more of the Pennsylvania environmental rights amendment, which the Greek Goddess of Obstruction (or is “Destruction”) fully considers to be her own creation, of course.

Scan the whole opinion to peruse the highlighted sections and you’ll see what I mean, but for those lacking the fortitude to wade through the whole thing, here are the key sections as I see it (some citations deleted and emphasis added):

At issue is a decision of the Pennsylvania Department of Environmental Protection (PADEP or the Department) granting Atlantic Sunrise a Water Quality Certification under Section 401 of the Clean Water Act, 33 U.S.C. § 1341(a)(1). 

In addition to their challenge to the merits of PADEP’s decision to grant the Water Quality Certification, Petitioners raise an important jurisdictional question we left open in Delaware Riverkeeper Network v. Secretary of Pennsylvania Department of Environmental Protection (Riverkeeper II): whether our exclusive jurisdiction under the judicial review provisions of the Natural Gas Act, 15 U.S.C. § 717r(d), requires finality and how such a requirement would interact with Pennsylvania’s administrative scheme. 

For the reasons that follow, we hold that we have jurisdiction over the petitions and that Petitioners’ challenges fail on the merits...

Section 401 requires permit applicants to obtain “a certification from the State in which the discharge . . . will originate . . . that any such discharge will comply with” that State’s water-quality standards. Because of these statutory requirements, Transco had to obtain a Water Quality Certification from PADEP before FERC would approve the pipeline project…

Delaware Riverkeeper

After a public comment period, the Department certified in April 2016 that Atlantic Sunrise would comply with Pennsylvania’s water-quality standards if it satisfied certain conditions…

In response to PADEP’s notice, Petitioners immediately filed two parallel challenges to the approved Water Quality Certification. First, they sought relief directly from this Court under the exclusive review provision of the Natural Gas Act, 15 U.S.C. § 717r(d)(1). Second, three of the petitioners also appealed PADEP’s decision to the Pennsylvania Environmental Hearing Board (EHB or the Board). The Board has stayed its proceedings pending our jurisdictional ruling, so we turn to that issue now.

Delaware Riverkeeper

Under the Natural Gas Act, the courts of appeals have “original and exclusive jurisdiction over any civil action for the review” of a state administrative agency’s “action” taken “pursuant to Federal law to issue . . . any . . . concurrence” that federal law requires for the construction of a natural-gas transportation facility. We have previously held that when PADEP issues a Water Quality Certification, it does so “pursuant to federal law,” and the parties do not dispute that federal law requires the Department to concur before construction on Atlantic Sunrise can move forward. 

Nevertheless, Petitioners contend that we lack jurisdiction to review their claims

Petitioners are incorrect that the Department’s decision is non-final for purposes of this Court’s review because a Pennsylvania statute provides that “no action of [PADEP] shall be final as to [a] person until the person has had the opportunity to appeal the action to the [EHB]” or the time to appeal has expired. Despite this language, Pennsylvania cannot declare when and how an agency action taken pursuant to federal law is sufficiently final to be reviewed in federal court. State law’s use of the word “final” to characterize an agency’s decision is irrelevant in that context, except so far as that language is relevant to the substantive effect of the order in question and the practical character of the procedures surrounding it. Here, those underlying realities indicate that PADEP has taken final action. 

Nor does due process require that Petitioners have an opportunity to present evidence at a hearing before the EHB. “There are instances in which due process requires that an agency afford an adversarial mode of procedure and an evidentiary hearing,” but this “is not such an instance.” The essence of due process is notice and an opportunity to be heard, and with respect to decisions like the one under review here, the public comment period provided Petitioners “with meaningful hearing rights sufficient under the circumstances to protect [their] interests.” Due process does not entitle Petitioners to a de novo evidentiary hearing; the opportunity to comment and to petition this Court for review is enough

Petitioners next argue that PADEP’s issuance of a conditional Water Quality Certification violates the Takings Clause of the Fifth Amendment and the Due Process Clause of the Fourteenth Amendment. Under the Natural Gas Act, any natural gas company holding a Certificate of Public Convenience and Necessity may acquire a pipeline right-of-way through eminent domain…

Petitioners assert that PADEP violated the Fifth and Fourteenth Amendments when it issued a conditional Water Quality Certification—a condition precedent for initiating eminent domain proceedings under Transco’s Certificate of Public Convenience and Necessity—based on a relatively restricted administrative process…

Rather, Petitioners’ eminent-domain argument is in substance a challenge to FERC’s order granting a Certificate of Public Convenience and Necessity. And that order may only be challenged by a request for rehearing before FERC itself, or by a petition for review by an appropriate federal circuit court. Petitioners respond, in essence, that those avenues are inadequate because if Petitioners took advantage of them, Transco would resist and Petitioners might lose. That argument refutes itself.

Petitioners’ final argument—that PADEP failed to comply with its obligations under the Pennsylvania Constitution—also fails. Article I, Section 27 of the Pennsylvania Constitution establishes a common right to the Commonwealth’s natural resources and obligates its government to hold those resources in trust. Petitioners argue that PADEP failed to live up to that obligation when it issued a Water Quality Certification conditioned on Transco later obtaining certain substantive permits…

Nevertheless, Petitioners’ claim under the Pennsylvania Constitution cannot succeed on the merits. Petitioners essentially complain that PADEP could not have met its obligation to safeguard Pennsylvania’s natural resources because it granted a Water Quality Certification before collecting the environmental impact data that would be required to issue the substantive permits on which it was conditioned. That fails for the same reason that we rejected Petitioners’ argument that PADEP’s decision to grant a Water Quality Certification conditioned on obtaining other permits was arbitrary and capricious. Because Transco will have to obtain those substantive permits to begin construction—and PADEP will have to consider Article I, Section 27 in deciding whether to grant or deny them—Petitioners cannot show that they have been harmed by the Department’s decision to issue a conditional Water Quality Certification. 

There’s much more, but these are the basics. The attempt to bootstrap the environmental rights amendment into something more than it really is failed miserably. The court affirmed that water quality certification is a matter or Federal law, not state law. Maya’s shovelful strategy failed. Obstruction has its limits, even for the Greek Goddess of the same name.

UPDATE: According to the Legal Intelligencer, Maya had this strong reaction:

“Third Circuit judges twisted themselves into pretzels to find ways to deny the rights of the people of Pennsylvania to challenge the lawfulness of a pipeline project and instead to advance the pipeline despite the fact that neither the public nor the DEP have an understanding of the full array of harms that will be inflicted,” van Rossum said.

“With this ruling the court is taking from people their ability to challenge a pipeline project at a time that could make a meaningful difference and instead greasing the wheels for all future approvals needed from the state,” she continued. “The court is also creating the possibility that if in fact we were victorious in defeating future permitting for the project, that the people of Pennsylvania will have already lost their property rights via eminent domain to a project that might never be built.”

Way to go, Maya! That’s the way the impress the judges who will likely hear the WLMG case when it goes back up to the Third  Circuit! Way to go, William Penn Foundation! This is your gal, your paid shill.

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