Federal Court Patience with Delaware Riverkeeper Antics Growing Thin?

Tom Shepstone
Natural Gas NOW

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Delaware Riverkeeper antics in Federal court appear to exhausting the patience of some judges who are saying get out of here. One wonders if funders notice.

A decision released on Friday by the Third Circuit Court of Appeals raises the prospect the courts are tiring of Delaware Riverkeeper antics. This decision was made by a three-judge panel who sound exasperated. They use the word “despite” in a rational her unkind way if you read between the lines. They seem to wonder out loud what part of “no” the PovertyKeeper, as we like to accurately describe the organization, doesn’t understand.

Delaware Riverkeeper Antics

Indeed, this case is largely a repeat of arguments made against the already operating Atlantic Sunrise Pipeline in another case, excepting that this time the Delaware Riverkeeper antics extend to a general permit for hydrostatic testing, which one would hope it supports. It doesn’t, of course, because it’s solely focused on stopping all pipelines with anything at its disposal, even though its own offices are heated with gas delivered by pipeline.

Those arguments were, in any case, previously rejected by the Third Circuit and so we get this reaction from the judges (emphasis added):

The Natural Gas Act provides us with original and exclusive jurisdiction to hear “any civil action for the review of an order or action of a . . . State administrative agency . . . to issue, condition, or deny any permit, license, concurrence, or approval.” Despite this broad grant of review, Riverkeeper argues that the Court lacks jurisdiction to hear its petition because the matter is not ripe. It asserts that the Department’s decision must be first reviewed by Pennsylvania’s Environmental Hearing Board, and is therefore not a final order or action. However, we have previously addressed this question in Riverkeeper III. There, we held that a final decision by the Department is a final agency action and is ripe for review. The Department’s decisions are “immediately effective” and “[t]he Department and the Board are entirely independent agencies.” Riverkeeper gives us no reason to disturb that conclusion here. Its petition is ripe, and we have jurisdiction to hear the merits of the claim.

Why did the PovertyKeeper not withdraw this lawsuit after the first decision, given the fact the Atlantic Sunrise is already operating? That would seem to make sense, but the PovertyKeeper, like the CELDF which has been funded by some of the same enablers, always holds out hope some court, some day, will go the other way. As the big green money to fund the lawsuits keeps coming they’ll keep trying until some legacy-building, agenda-driven judge goes their way, even if takes 100 lawsuits.

Meanwhile, these Delaware Riverkeeper antics serve to provide an excuse for delaying other projects. This is what happened when the Povertykeeper sued over a finished Tennessee Gas Pipeline project in 2014 and won; it forced new studies, new regulation and new delays on future projects. It also led to the DRBC becoming involved in ways it had never before, causing problems for later projects by other companies. It’s all a delay game, funded by gentry class enablers pursuing special interests.

This Third Circuit decision pushes the genie back down into the bottle a bit. Here’s some more of what the judges had to say:

[Riverkeeper] argues that three different sections of the Clean Water Act required the Department to allow a public notice and comment period before accepting Transco’s Notice [ Transco being the Atlantic Sunrise developer]. They are: (1) 33 U.S.C. § 1342(a)(1), which requires a public hearing before a discharge permit may be issued; (2) § 1251(e), which “provide[s] for [and] encourage[s]” “public participation in the development, revision, and enforcement of any regulation, standard, effluent limitation, plan, or program;” and (3) § 1342(j), which requires that “[a] copy of each permit application and each permit shall be available to the public.”

However, the Department did hold a public notice period—prior to finalizing the general hydrostatic testing permit. At that point the public was on notice that the Department would approve hydrostatic testing discharges into the state waterways based on the promulgated criteria. The Department’s approval of Transco’s Notice is not a separate permit; it is simply a confirmation that Transco’s plan conforms with the general permit’s requirements. All substantive requirements appear in the general permit, and Transco’s Notice simply shows it intends to comply with those standards…

While Riverkeeper points to significant “site-specific scientific and technical information” provided in the Notices, it admits that this information was included “to demonstrate compliance with numerous substantive criteria for coverage under the [general] permit.” In other words, the situation here follows the “traditional model,” in which the substantive information is found in the general permit, not the Notices. The notice requirements found in §§ 1342(a)(1), 1251(e), and 1342(j) of the Clean Water Act are therefore not applicable to Transco’s Notice.

Finally, Riverkeeper also argues that the Department violated Section 401(a)(1) of the Clean Water Act when it issued Transco’s water quality certificate. That Section requires the Department to “establish procedures for public notice in the case of all 10 applications for certifications.” Riverkeeper argues that the Department violated this Section because it issued Transco’s certification conditionally upon Transco also receiving permits for, inter alia, hydrostatic testing. Riverkeeper asserts that the Department “provided notice of only the conditional Section 401 water quality certificate—and not the underlying substantive state permits.”

This is a variant of the same argument we have previously addressed in several other cases between these parties. We have held that the Department’s “preferred procedure for considering Certifications along with other permits was not arbitrary and capricious because . . . no construction can begin before the Department grants the substantive permits, and all interested parties will have a full opportunity to weigh in” on the applications. Riverkeeper does not provide us any reason to revisit that holding here.

It’s not hard to read frustration in the tone of this decision by the Third Circuit, which is clearly tiring of Delaware Riverkeeper antics. But, the antics will continue as long as filthy rich gentry class foundations fund the Povertykeeper to continue them. The latter took in $3,378,236 in 2017 according to its latest 990 return. Some $1,365,000 or over 40% of that came from the spoiled children of the Haas family through the William Penn Foundation. Another $625,000 or almost 19% came from R. Bruce Wallace, an artist and grandson of former Vice-President and Progressive Party Presidential candidate Henry A. Wallace, through a private plaything called the Woodtiger Fund, which is as special interest as it gets.

But, are these funders also starting to wonder if these Delaware Riverkeeper antics are paying off? Maybe. The William Penn Foundation’s 2017 contribution was for two years of support or $682,500 per year. A 2019 grant of $1.4 million to the Povertykeeper is for three years or $466,666 per year. And, Wallace’s donation related to oil and gas was $225,000. The rest went to funding his NIMBY bridge opposition. So, maybe, just maybe, these funders are tightening the screws a little. Let’s hope so!

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