The Delaware Riverkeeper Network and M. van Rossum, The Delaware Riverkeeper v. DEP ( 2018 )

IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Delaware Riverkeeper :
Network and Maya van Rossum, :
The Delaware Riverkeeper, :
Petitioners :
:
v. : No. 1571 C.D. 2017
: ARGUED: June 4, 2018
Department of Environmental :
Protection, :
Respondent :
BEFORE: HONORABLE ROBERT SIMPSON, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE BONNIE BRIGANCE LEADBETTER, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE CEISLER FILED: August 1, 2018
Petitioners, The Delaware Riverkeeper Network and Maya van Rossum, The
Delaware Riverkeeper (Riverkeeper, collectively), petition for review of the
Pennsylvania Environmental Hearing Board’s (EHB) October 24, 2017 Order
denying Riverkeeper’s Petition for Leave to File Appeal Nunc Pro Tunc (Nunc Pro
Tunc Petition).1 Through this Nunc Pro Tunc Petition, Riverkeeper requested
1
The Delaware Riverkeeper Network is a non-profit organization
established in 1988 to protect and restore the Delaware River, its
associated watershed, tributaries and habitats. The . . . Network is a
membership organization headquartered in Bristol, Pennsylvania,
with more than 16,000 members. . . . Maya van Rossum is the
Delaware Riverkeeper, a full-time, privately funded ombudsman
who is responsible for the protection of the waterways in the
Delaware River Watershed.
Nunc Pro Tunc Petition at 1.
permission to file what otherwise would have been an untimely challenge to
Respondent Commonwealth of Pennsylvania, Department of Environmental
Protection’s (DEP) February 7, 2017 approval of Intervenor PennEast Pipeline
Company, LLC’s (PPC) Water Quality Certification application. This application
pertained to PPC’s PennEast Pipeline Project (PennEast Project), a natural gas
pipeline that is slated to traverse portions of Bucks, Carbon, Luzerne, and
Northampton Counties. Riverkeeper’s Brief at 2-3; Reproduced Record (R.R.) at
18a. After careful review, we affirm the EHB.
I.
To place this matter in the proper context, we must first examine the interplay
between state and federal environmental regulatory schemes governing such
pipelines. By virtue of the Natural Gas Act of 1938 (NGA),2 “Congress [has]
occupied the field of matters relating to wholesale sales and transportation of natural
gas in interstate commerce,” thereby almost completely preempting state laws and
regulations in this area. Schneidewind v. ANR Pipeline Co., 485 U.S. 293, 305
(1988). Consequently, “the Federal Energy Regulatory Commission (‘FERC’) is the
‘lead agency’ for evaluating interstate [natural gas] pipeline projects. 15 U.S.C. §
717n(b).” Del. Riverkeeper Network v. Sec’y of Pa. Dep’t of Envtl. Prot. (Orion),
870 F.3d 171, 174 (3d Cir. 2017). The NGA’s preemptive powers are not absolute,
however, as the statute includes explicit preemption carve-outs declaring that
[e]xcept as specifically provided in [the NGA], nothing in
[the NGA] affects the rights of States under-- (1) the
Coastal Zone Management Act of 1972 (16 U.S.C. 1451
et seq.); (2) the Clean Air Act (42 U.S.C. 7401 et seq.); or
(3) the Federal Water Pollution Control Act [(Clean Water
Act)] (33 U.S.C. 1251 et seq.).
2
15 U.S.C. §§ 717-717z.
2
15 U.S.C. § 717b; see Del. Riverkeeper Network v. Sec’y Pa. Dep’t of Envtl. Prot.
(Leidy Line), 833 F.3d 360, 372 (3d Cir. 2016) (“In other words, the only state action
over interstate natural gas pipeline facilities that [can] be taken pursuant to federal
law is state action taken under [these] statutes.”). This exception thus preserves a
limited regulatory role for state environmental agencies with regard to such
pipelines, including a permit process necessitated by the Clean Water Act and known
as a “Water Quality Certification.”
Section 401 of the Clean Water Act requires
[a]ny applicant for a Federal license or permit to conduct
any activity including, but not limited to, the construction
or operation of facilities, which may result in any
discharge into the navigable waters, [to] provide the
licensing or permitting agency a [Water Quality
C]ertification from the State in which the discharge
originates or will originate, or, if appropriate, from the
interstate water pollution control agency having
jurisdiction over the navigable waters at the point where
the discharge originates or will originate, that any such
discharge will comply with the applicable provisions of
sections 1311, 1312, 1313, 1316, and 1317 of [the Clean
Water Act, which address effluent discharge and water
quality levels].
33 U.S.C. § 1341(a)(1).
A Water Quality Certification confirms that a given
facility will comply with federal discharge limitations and
state water quality standards. . . . [T]he Water Quality
Certification is by default a state permit, and the issuance
and review of a Water Quality Certification is typically left
to the states.
Leidy Line, 833 F.3d at 368-69. Once an applicant files a Water Quality Certification
application, the Clean Water Act gives the relevant state agency (here, the DEP) one
year from the filing date of the application to return a decision; a failure to do so
results in waiver of the certification requirement. 33 U.S.C. § 1341(a)(1); Leidy Line,
3
833 F.3d at 369. If an individual or entity disagrees with the DEP’s decision the
NGA affords the individual or entity the right to petition the United States Court of
Appeals for the Third Circuit (Third Circuit) for review. See 15 U.S.C. § 717r(d)(1);
Leidy Line, 833 F.3d at 372 (“[A] state action taken pursuant to the Clean Water Act
. . . is subject to review exclusively in the Courts of Appeals.”).
Significantly, the question of when exactly that right attaches has not been
completely settled, at least in the context of Pennsylvania’s environmental
regulatory scheme. This is due to the existence of the EHB, which is “an independent
quasi-judicial agency” that has the “power and duty to hold hearings and issue
adjudications . . . on orders, permits, licenses or decisions of the [DEP].” Sections
3(a) and 4(a) of the Environmental Hearing Board Act, Act of July 13, 1988, P.L.
530, 35 P.S. §§ 7513(a), 7514(a); Orion, 870 F.3d at 177-78.
When an appeal is taken from DEP to the EHB, the EHB
is required to conduct a hearing de novo. The EHB is not
an appellate body with a limited scope of review
attempting to determine if DEP’s action can be supported
by the evidence received at DEP’s fact finding hearing.
Rather, the EHB’s duty is to determine if DEP’s action can
be sustained or supported by the evidence taken by the
EHB.
Leatherwood, Inc. v. Dep’t of Envtl. Prot., 819 A.2d 604, 611 (Pa. Cmwlth. 2003)
(internal citations omitted).
The Third Circuit has yet to decide whether it may exercise jurisdiction over
a DEP Water Quality Certification-related petition for review where an EHB appeal
addressing the same matter is still pending; however, it has concluded that a party’s
failure to file a timely appeal with the EHB renders the DEP’s action final and, thus,
ripe for review by the Third Circuit. See Orion, 870 F.3d at 177-78.
4
In Orion, Riverkeeper had petitioned for review of the DEP’s approval of a
Water Quality Certification application from Tennessee Gas Pipeline Company
(Tennessee) for a 12.9-mile-long natural gas pipeline running through Pike and
Wayne Counties, but did not also challenge that approval via a timely appeal to the
EHB. Id. at 173-78. Riverkeeper argued, in part, that the NGA prevented the Third
Circuit from exercising jurisdiction over the petition, because the underlying DEP
decision was not reviewable until the state-level administrative process had been
completed, which would not occur until the EHB had issued its own assessment.
Thus, Riverkeeper sought to have the matter transferred to EHB on this basis. Id. at
175. The Orion court sidestepped the question of whether the NGA required
administrative finality, noting that there were other pending cases on the Third
Circuit’s docket in which that question could be “better resolved.” Id. at 176-78.3
Still, the Third Circuit found that it had jurisdiction over the Orion petition,
explaining that Riverkeeper’s failure to appeal the DEP’s decision to the EHB
rendered that decision final and, thus, reviewable by the Third Circuit. Id. at 177-78.
II.
With all of this in mind, we now turn to the current matter. On February 9,
2016, PPC filed a Water Quality Certification application with the DEP for the
PennEast Project, which the DEP approved on February 7, 2017. 47 Pa. B. 1218-
1220 (2017); R.R. at 5a, 18a-19a, 25a-27a. DEP published notice of this approval in
the Pennsylvania Bulletin on February 25, 2017, and included the following
instruction:
Any person aggrieved by this action may file a petition for
review pursuant to Section 19(d) of the [NGA], 15
3
The parties’ briefs do not address whether the Third Circuit has since answered this
question.
5
U.S.C.A. § 717r(d), with the Office of the Clerk, United
States Court of Appeals for the Third Circuit, 21400 U.S.
Courthouse, 601 Market Street, Philadelphia, PA 19106-
1790 within 30 days of publication of this notice, or within
30 days of receipt of written notice of this action,
whichever occurs first.
47 Pa. B. 1220 (2017); R.R. at 27a. In response, Riverkeeper petitioned the Third
Circuit on February 28, 2017 for review of the DEP’s approval of PPC’s Water
Quality Certification application, but, as in Orion, did not elect to appeal this
approval to the EHB at that time. PPC’s Brief at 5. To date, the Third Circuit has not
rendered a decision on Riverkeeper’s petition. Id.
On September 19, 2017, more than 6 months after the administrative appeal
window had closed, Riverkeeper filed its Nunc Pro Tunc Petition with the EHB.
Therein, Riverkeeper mentioned the Orion decision, without explaining that
decision’s relevance, and argued that it should be allowed to appeal the DEP’s
decision nunc pro tunc to the EHB, claiming “good cause” for granting such relief
existed for two reasons. First, it was misled about its appeal options by the DEP’s
February 25, 2017 notice, which, in contrast to notices issued in other, similar
matters, explicitly stated that the proper way to challenge the DEP’s decision
regarding PPC’s Water Quality Certification application was by petitioning the
Third Circuit, rather than through an appeal to the EHB. Memorandum of Law in
Support of Nunc Pro Tunc Petition at 1-4. Second, in petitioning the Third Circuit
for review, Riverkeeper claimed it was acting “with cognizance of the [United States
District Court for the Middle District of Pennsylvania’s] decision in Tennessee Gas
Pipeline Co. v. Delaware Riverkeeper Network [(Northeast Upgrade Project)], 921
6
F. Supp. 2d 381 (M.D. Pa. 2013).” Id. at 6.4 Riverkeeper analogized the putatively
deficient DEP notice to those at issue in California University of Pennsylvania v.
Zoning Hearing Board, 107 A.3d 241 (Pa. Cmwlth. 2014),5 and Department of
Transportation, Bureau of Traffic Safety v. Moore, 554 A.2d 130 (Pa. Cmwlth.
1988).6 In these cases, our Court held that the appellants were permitted to file
4
In Northeast Upgrade Project, the District Court found that Section 19(d)(1) of the NGA,
15 U.S.C. § 717r(d)(1), barred the EHB from reviewing DEP decisions regarding pipeline-related
permit applications made pursuant or closely related to requirements set forth by the Clean Water
Act, and opined that, under the NGA, that role was reserved exclusively for the Third Circuit. 921
F. Supp. 2d at 387-96. On that basis, the District Court issued a preliminary injunction barring the
EHB from reviewing challenges filed by a number of private environmental protection
organizations (including Riverkeeper) regarding several permits the DEP had approved for the
Northeast Upgrade natural gas pipeline project. Id. This decision did not enjoin the EHB from
entertaining such challenges in other matters and, according to PPC, the District Court dismissed
the Northeast Upgrade Project case on April 23, 2013. PPC’s Brief at 15-16.
5
In California University of Pennsylvania v. Zoning Hearing Board, we vacated the trial
court’s dismissal of a statutory appeal filed by California University. We held that there had been
a breakdown in the judicial process, because the Zoning Hearing Board (ZHB) had erroneously
informed the University, via the ZHB’s cover letter attached to the copy of the decision that was
mailed to the University, that the appeal window was open for thirty days after the University’s
receipt of the decision, rather than from the date of the decision’s mailing. Accordingly, we
remanded the matter to the trial court, with instructions to hold an evidentiary hearing to determine
when exactly the University had received the decision and whether, based upon that date and the
ZHB’s incorrect instructions, the University should be allowed to file a nunc pro tunc appeal. 107
A.3d at 242-46.
6
In Department of Transportation, Bureau of Traffic Safety v. Moore:
[Moore] received a citation on April 20, 1983 for an invalid registration sticker and
was fined $44.00. Effective November 15, 1983, his [vehicle] operating privilege
was suspended for failure to respond to that citation. He contend[ed] that he never
received notice of this suspension and did not learn of it until he was cited on March
3, 1986 for failure to stop at a red light. At that time, he was also cited for driving
while his operating privilege was suspended, in violation of Section 1543 of the
Vehicle Code, as amended, 75 Pa.C.S. § 1543.
554 A.2d at 131.
7
appeals nunc pro tunc because they had received erroneous information from the
relevant governmental entities, which prevented the appellants from appropriately
exercising their appellate rights. Memorandum of Law in Support of Nunc Pro Tunc
Petition at 5-6. In addition, Riverkeeper argued that neither the DEP nor PPC would
be prejudiced by a nunc pro tunc appeal because, even if the appeal had been timely
filed, the EHB would likely have stayed it until the Third Circuit entered a “ruling
on its jurisdiction [over] these [kinds of] matters.” Id. at 7.
PPC responded to Riverkeeper’s request on October 3, 2017, opining that
nunc pro tunc relief was not warranted under the circumstances. According to PPC,
[a]lthough not cited in its [Nunc Pro Tunc Petition],
Riverkeeper has made clear in multiple filings in various
court proceedings that its argument that appeal to the EHB
is proper is based upon the United States Court of Appeals
for the
First Circuit’s decision in Berkshire Environmental Action
Team, Inc. v. Tennessee Gas Pipeline Company, LLC, 851
F.3d 105 (1st Cir. 2017).[7] The Berkshire decision was
Subsequently, Moore appeared before a magisterial district judge, who told him that his
operating privileges would be restored if he paid the citation fines, and did not discover that the
judge had led him astray until the appeal window pertaining to the March 3, 1986 citations had
closed, when the Department of Transportation notified him that it was suspending his operating
privileges for six months. Id. On appeal, “[w]e agree[d] with the trial court that incorrect
information given to the appellee by the district justice [was] sufficient reason to permit [Moore
to appeal the March 3, 1986 citations] nunc pro tunc.” Id. at 132.
7
In Berkshire, the First Circuit dismissed a petition for review regarding the Massachusetts
Department of Environmental Protection’s (MassDEP) approval of a pipeline-related Water
Quality Certification application for lack of jurisdiction. 851 F.3d at 113. The Berkshire court
reviewed Massachusetts’ administrative process pertaining to such applications, noting that an
entity or individual may appeal a MassDEP decision regarding such an application, which will
then result in a de novo hearing in which MassDEP must again review the application. Id. at 111-
13. Because the Berkshire petitioners had filed a timely administrative appeal of MassDEP’s
application approval, and that appeal was still pending, the First Circuit concluded that there was
no final agency determination, which thereby deprived it of subject matter jurisdiction. Id.
8
issued on March 15, 2017. At that time, 12 days remained
in the 30 day period for appeal of the [DEP’s approval of
PPC’s Water Quality Certification application] to the
EHB. See 25 Pa. Code § 1021.52(a)(2)(i). Riverkeeper
was well aware of Berkshire as soon as [that] decision was
issued, as evidenced by the fact that Riverkeeper and its
counsel have been citing to and making arguments based
[up]on it ever since. Yet, Riverkeeper did not appeal . . .
to the EHB before the deadline and [instead] waited an
additional six months after Berkshire before seeking leave
to file an appeal nunc pro tunc.
PPC’s Memorandum of Law in Opposition to Nunc Pro Tunc Petition at 2.
PPC further highlighted a number of filings by Riverkeeper in other litigation,
including:
 A March 21, 2017 response by Riverkeeper to a Third Circuit order issued in
Orion, in which Riverkeeper briefly discussed Berkshire in a footnote;
 Riverkeeper’s letter brief submitted to the Third Circuit in Delaware
Riverkeeper Network, v. Department of Environmental Protection (Atlantic
Sunrise), Case No. 16-2211, on April 18, 2017, in which Riverkeeper again
referenced Berkshire and argued that a DEP Water Quality Certification
decision was not final until either the EHB administrative process has finished
or a party failed to file a timely appeal with the EHB;
 Riverkeeper’s July 11, 2017 principal brief in Atlantic Sunrise, in which
Riverkeeper presented the same arguments as in its earlier submissions;
In Orion, “Riverkeeper argue[d] that [the Third Circuit] should follow Berkshire’s holding
and read a finality requirement into [section 19(d)(1) of the NGA, 15 U.S.C. §717r(d)(1)]. . . [and]
further argue[d] that PA DEP’s order [approving Tennessee’s Water Quality Certification
application for the Orion natural gas pipeline project was] not final because Pennsylvania’s
administrative scheme is analogous to Massachusetts’s.” 870 F.3d at 176.
9
 Riverkeeper’s April 21, 2017 principal brief in Orion, in which it again cited
Berkshire and argued that the matter was not ripe for Third Circuit review
until the EHB had weighed in; and
 Riverkeeper’s May 18, 2017 reply brief in support of its request for a stay of
proceedings regarding the Third Circuit’s review of the DEP’s PennEast
Project decision.8
See PPC’s Memorandum of Law in Opposition to Nunc Pro Tunc Petition at 5-8,
Exs. A-E.
In addition, PPC argued that the amount of time that passed between
publication of both Berkshire and Orion and Riverkeeper’s filing of its Nunc Pro
Tunc Petition showed that Riverkeeper were not reasonably diligent in seeking
relief. Id. at 11. Finally, PPC claimed that allowing Riverkeeper to appeal to the EHB
nunc pro tunc would unfairly prejudice both the DEP and PPC because it would
further delay progress on the PennEast Project, as both entities had relied on
Riverkeeper’s decision to only petition the Third Circuit for review. Id. at 11-12.
According to PPC, the parties had fully briefed the Third Circuit petition and the
matter was ripe for review, but “[n]ow, Riverkeeper seeks to change the rules of the
game in the ninth inning, as Riverkeeper suddenly realized that [their] failure to file
an appeal here [with the EHB] could be dispositive on the issue of whether the Third
Circuit exercises jurisdiction over the [Water Quality Certification approval].” Id. at
12. In essence, PPC asserted that prejudice would result from allowing a nunc pro
8
Therein, Riverkeeper mentioned the EHB’s ruling, in a separate matter, that DEP’s
approval of a pipeline-related Water Quality Certification application did not constitute a final
agency action under the circumstances, argued that “[t]he parallels between the Massachusetts and
Pennsylvania regulatory regimes are too similar to ignore,” and reiterated its belief that the Third
Circuit did not have jurisdiction to entertain a petition for review until the EHB has reviewed the
DEP’s approval of an application and issued its own ruling. PPC’s Memorandum of Law in
Opposition to Nunc Pro Tunc Petition, Ex. D.
10
tunc appeal, as it would create another regulatory hurdle to the completion of the
PennEast Project. Id. at 11-12.
On October 6, 2017, Riverkeeper responded to PPC’s filing by sending a letter
to the administrative law judge assigned to the matter, arguing that PPC failed to
paint a complete and accurate picture of the jurisdictional arguments Riverkeeper
had made to the Third Circuit in the aforementioned cases. Riverkeeper Letter,
10/6/17, at 1. Riverkeeper attached copies of two briefs they had filed with the Third
Circuit regarding their PennEast Project-related petition for review, to ensure that
the EHB had a “more complete record.” See id. at 1, Exs. A-B.
The DEP filed a response to the Nunc Pro Tunc Petition on October 18, 2017.
The DEP disagreed with Riverkeeper’s contention that the February 25, 2017 notice
in the Pennsylvania Bulletin “directed” aggrieved parties to petition the Third Circuit
for review, as the notice only said that such parties “may file” a petition. DEP’s
Memorandum of Law in Opposition to Nunc Pro Tunc Petition at 5-6. In addition,
DEP maintained that Riverkeeper failed to show that this notice was “contrary to
law[,]” noted the jurisdictional import of the Leidy Line, Northeast Upgrade Project,
and Orion decisions, distinguished this matter from the California University and
Moore decisions, and claimed that the notice was “factually accurate and consistent
with the law.” Id. at 7-8. Finally, the DEP asserted that Riverkeeper’s request for
relief was untimely, because Riverkeeper did not seek leave to file a nunc pro tunc
appeal until nearly three months after they had argued to the Third Circuit that that
Court could not exercise jurisdiction over their challenge to the PennEast Project
until the EHB had weighed in, and more than seven months after the DEP’s approval
of PPC’s Water Quality Certification application. Id. at 8-9.
11
On October 24, 2017, the EHB denied Riverkeeper’s Nunc Pro Tunc Petition.
The EHB noted that our case law allows for nunc pro tunc appeals where “a would-
be appellant reasonably relies to its detriment upon incorrect information from a
governmental authority regarding the need or manner to appeal[,]” and
acknowledged that the language of the February 25, 2017 DEP notice “was
misleading or, at best, incomplete.” EHB Opinion, 10/24/17, at 3. Nonetheless, the
EHB held that Riverkeeper was not entitled to nunc pro tunc relief. EHB Opinion,
10/24/17, at 1-4. The EHB had
difficulty accepting the Riverkeeper’s representation that
[they] actually relied on the [Pennsylvania] Bulletin notice
because extremely able counsel for the Riverkeeper has
filed simultaneous appeals with this Board and the Third
Circuit in at least one other pipeline case, Lancaster
Against Pipelines, et al. v. DEP, EHB Docket No. 2016-
075-L.
Id. at 3. In addition, even assuming such reliance, the EHB
question[ed] whether that reliance was reasonable given
the uncertainty in the law about the appropriate forum for
an appeal of a [Section] 401 [of the Clean Water Act]
certification, an uncertainty about which the Riverkeeper
was fully aware given [their] filings in the Third Circuit
matter. The Riverkeeper [have] actually argued for months
in the Third Circuit case that jurisdiction lies with this
Board, yet [they] did not until this late date take the
relatively simple step of filing an EHB appeal to preserve
[their] rights. The Riverkeeper could very easily have filed
simultaneous appeals before the Third Circuit and this
Board. There was certainly no downside to doing so, given
the minimal expense and effort associated with filing an
EHB appeal.
Id. Finally, the EHB found that Riverkeeper had “quite clearly failed to act with due
diligence to preserve [their] rights” by waiting until 205 days after the DEP’s
application approval, and until 20 days after Orion was published, to file its Nunc
12
Pro Tunc Petition, noting that Riverkeeper failed to explain these delays or why the
Orion decision suddenly prompted them to seek such relief. Id. at 4. This Petition
for Review followed.
III.
Our review of an EHB decision is limited to determining whether the EHB
committed errors of law or constitutional violations and whether its decision is
supported by substantial evidence. Eureka Stone Quarry, Inc. v. Dep’t of Envtl.
Prot., 957 A.2d 337, 344 (Pa. Cmwlth. 2008).
Substantial evidence is defined as “such relevant evidence
as a reasonable mind might accept as adequate to support
a conclusion.” Department of Environmental Resources v.
Borough of Carlisle, 16 Pa. Cmwlth. 341, 330 A.2d 293,
298 (1974). An administrative agency has broad discretion
in the performance of its administrative duties and
functions and . . . an agency’s exercise of its discretion
[cannot be invalidated] absent proof of fraud, bad faith, or
blatant abuse of [that] discretion. Herzog v. Department of
Environmental Resources, 166 Pa. Cmwlth. 114, 645 A.2d
1381 (1994). In addition . . . the resolution of conflicts in
testimony, the credibility of witnesses, and the weight
given the evidence are within the province of the Board.
Pawk v. Department of Environmental Resources, 39 Pa.
Cmwlth. 457, 395 A.2d 692 (1978).
Id.The EHB may permit a party to file an appeal nunc pro tunc “for good cause
shown.” 25 Pa. Code § 1021.53a. A nunc pro tunc appeal will be allowed only in
situations where “(1) the appellant’s notice of appeal was filed late as a result of non-
negligent circumstances, either as they relate to the appellant or the appellant’s
counsel; (2) the appellant filed the notice of appeal shortly after the expiration date
[of the appeal window]; and (3) the appellee was not prejudiced by the delay.” Criss
v. Wise, 781 A.2d 1156, 1159 (Pa. 2001); see also Falcon Oil Co. v. Dep’t of Envtl.
13
Res., 609 A.2d 876, 878 (Pa. Cmwlth. 1992) (“A nunc pro tunc appeal of an
administrative action will be allowed only where there is a showing of fraud,
breakdown in the administrative process or unique and compelling factual
circumstances establishing a non-negligent failure to file a timely appeal.”). “The
exception for allowance of an appeal nunc pro tunc in non-negligent circumstances
is meant to apply only in unique and compelling cases in which the appellant has
clearly established that she attempted to file an appeal, but unforeseeable and
unavoidable events precluded her from actually doing so.” Criss, 781 A.2d at 1160.
IV.
Riverkeeper put forth a single question for our consideration:
Whether a would-be appellant [i.e. Riverkeeper] that was
directed by [the DEP] to challenge a DEP approval for a
natural gas pipeline with the United States Court of
Appeals for the Third Circuit, and which was previously
enjoined by the United States District Court for the Middle
District of Pennsylvania [in Northeast Upgrade Project]
from pursuing an appeal of a DEP approval for a natural
gas pipeline before the . . . [EHB], has shown good cause
to file an appeal nunc pro tunc with the EHB.
Riverkeeper’s Brief at 2. In its brief, Riverkeeper rehash the central argument they
made to the EHB - that they should have been allowed to appeal nunc pro tunc
because the February 25, 2017 DEP notice’s misleading language, combined with
the injunctive effect of Northeast Upgrade Project, constituted “a breakdown in the
administrative process and/or unique and compelling factual circumstances
establish[ing] a non-negligent failure by [Riverkeeper] to [file a timely appeal with
the EHB].” Id. at 12.9
9
Curiously, and despite the express language of Northeast Upgrade Project, Riverkeeper
claim in their brief that the District Court’s ruling enjoined Riverkeeper from moving forward with
their EHB appeal in that matter. Riverkeeper’s Brief at 8; see Northeast Upgrade Project, 921 F.
14In addition, Riverkeeper note that the EHB properly found the February 25,
2017 DEP notice to be “misleading or incomplete,” but dispute the rest of the EHB’s
conclusions for several reasons. Id. at 13-14. First, in at least one other matter
involving DEP approval of a Water Quality Certification application, the parties
challenging the DEP’s decision had never been “the subject of an injunction issued
by [a] Federal District Court” impacting their ability to have an appeal heard by the
EHB. Id. at 14. Second,
contrary to the EHB’s contention, there certainly was a
“downside” for [Riverkeeper] to file an appeal with the
EHB. Given that [Riverkeeper] had already been subject
to an [injunctive] order from the Federal District Court [in
Northeast Upgrade Project], [Riverkeeper were]
reasonably concerned that an appeal to the EHB could
result in a claim that [their] appeal would be challenged as
frivolous. In fact, opposing counsel in another natural gas
pipeline matter threatened [Riverkeeper] with just such an
action if [they] filed an appeal with the EHB. . . . [U]ntil
the Third Circuit ruled in Orion that the failure to appeal
to the EHB could result in prejudice, [Riverkeeper] had no
basis for acting contrary to the ruling of the Federal
District Court [in Northeast Upgrade Project].
Id. at 15. Third, Riverkeeper claim that they acted with reasonable diligence by filing
the Nunc Pro Tunc Petition 20 days after the Third Circuit issued the Orion decision.
Riverkeeper argues that there is no firm guidance or fixed standard regarding how
much time a party has to file a Nunc Pro Tunc Petition, other than by implication
through the 30-day appeal window in the EHB’s regulations, and that “[r]equiring
[Riverkeeper] to guess as to what shorter time frame will or will not preclude [their
Supp. 2d at 382 (“Tennessee Gas Pipeline Company LLC (‘TGPC’) filed an Amended Complaint
. . . and Amended Motion for Emergency Preliminary Injunction . . . on January 8, 2013 seeking,
inter alia, a declaratory judgment that the [NGA] preempted [the EHB] from reviewing permits
that the [DEP] had issued to TGPC as required by the Federal Energy Regulatory Commission’s
(‘FERC’) Order dated May 29, 2012. . . . [T]he Court will grant TGPC’s Motion for Preliminary
Injunction.”).
15
request for relief] would be arbitrary, capricious and a violation of their due process
rights.” Id. at 16. Finally, Riverkeeper assert that neither the DEP nor PPC would
be prejudiced by allowing a nunc pro tunc appeal, because the EHB would likely
have stayed any appeal “pending the Third Circuit Court[’s] ruling on its jurisdiction
in this matter.” Id. at 17.
Unsurprisingly, PPC opposes Riverkeeper’s Petition for Review. PPC points
out that Northeast Upgrade Project was an entirely separate matter involving a
completely different pipeline project, as well as a completely separate pipeline
company, and that the preliminary injunction issued in that action enjoined the EHB,
not Riverkeeper, and thus had no injunctive effect upon either the EHB or
Riverkeeper in this case. PPC’s Brief at 14-16. In addition, PPC argues that the
EHB’s factual findings were supported by substantial evidence. Id. at 16-22. Finally,
PPC again claims that both it and the DEP would be prejudiced by a nunc pro tunc
appeal to the EHB because it would result in additional delays to the PennEast
Project. Id. at 23-24.
The DEP’s arguments on appeal are substantially similar to those advanced
by PPC, with two significant additions. First, the DEP reiterates that the phrase “may
file” in the February 25, 2017 DEP notice was not a directive to seek relief
exclusively in the Third Circuit. DEP’s Brief at 10-11. Second, the DEP discusses
more fully the import of Orion. According to the DEP,
Riverkeeper’s characterization of the Third Circuit’s
ruling in Orion is wrong[,] in that the Riverkeeper can
point to no language in the decision where the [Third
Circuit] “ruled that a party could prosecute a challenge of
the DEP action related to a natural gas pipeline before the
EHB.” [Riverkeeper’s Brief at 7]. Orion did recognize that
“finality remains unresolved in this circuit”; however,
Orion concluded that “finality and how such a requirement
would interact with Pennsylvania’s administrative scheme
16
are issues better resolved in [other] cases” [then] pending
before the [Third Circuit]. Orion, 870 F.3d at 177-178. As
recognized by the EHB . . . Riverkeeper [have] not shown
how the Orion decision . . . justifies [Riverkeeper’s]
failure to file a timely appeal [with the EHB].
Id. at 14.
In their reply brief, Riverkeeper clarify the perceived impact of the Northeast
Upgrade Project preliminary injunction, stating that “[o]bviously, [Riverkeeper
were] not free to ignore the precedent of a federal court decision to which [they were]
a party.” Riverkeeper’s Reply Brief at 4. Riverkeeper also opines that the fact that
the EHB was enjoined in that action, rather than Riverkeeper, “is a distinction
without a difference. The EHB appeal was instituted by [Riverkeeper]. [Riverkeeper
were] sued as . . . defendant[s] in the federal district court. The result of the
Tennessee Gas Pipeline prohibited [Riverkeeper] from pursuing [their] claims
before the EHB.” Id. Riverkeeper further expands on the preliminary injunction
issue in a footnote, stating
[the] DEP and [PPC] also erroneously argue that
[Riverkeeper claim they are] presently subject to a federal
court injunction. [PPC] goes so far as to claim that
[Riverkeeper’s] argument “makes it appear” as though the
Middle District decision was an order in a proceeding
involving the [PPC] Water Quality Certification. [PPC]
Brief [at] 14. Neither of these arguments [is] accurate. As
[Riverkeeper] clearly stated, the injunction had been
issued by the federal court in a prior action - i.e. the
[Northeast Upgrade Project] matter. The point of
[Riverkeeper’s] argument is not that [they are] presently
subject to the injunction but that [they] reasonably relied
on the ruling of the federal district court and DEP’s clear
instructions to file [their] appeal only in the Third Circuit
Court of Appeals, until the Third Circuit issued its Orion
decision.
Id. at 4 n.2.
17
V.
After careful review,10 we conclude that the EHB did not err or abuse its
discretion in denying Riverkeeper’s Nunc Pro Tunc Petition. Riverkeeper were
never enjoined, in this case or any other, from appealing DEP’s approval of a Water
Quality Certification application to the EHB. Thus, Riverkeeper’s argument that
they acted “with cognizance” of the Northeast Upgrade Project decision,
Riverkeeper’s Brief at 12, which imposed a subsequently dissolved preliminary
injunction against the EHB regarding an entirely separate pipeline matter, is
unpersuasive. In addition, the Third Circuit has not, thus far, ruled that it has
exclusive authority to entertain such challenges or that the NGA preempts the EHB
from playing a role in the review process. Therefore, Riverkeeper were not precluded
from filing an EHB appeal within the standard 30-day appeal window following the
DEP’s approval of PPC’s application.
Moreover, as the EHB noted in its opinion, Riverkeeper possess considerable
knowledge and experience regarding challenges to DEP approvals of such
applications, by virtue of Riverkeeper’s conduct and involvement in other, similar
matters, thereby diminishing the likelihood that Riverkeeper were actually misled
by the allegedly incomplete information in the DEP’s February 25, 2017 notice.
Thus, this case is distinguishable from both California University and Moore, due to
the uncontroverted evidence in those cases that the parties seeking nunc pro tunc
10
We note that Riverkeeper has waived one of its proffered claims by failing to raise it
before the EHB—namely, that it was entitled to nunc pro tunc relief because it was justifiably
concerned that an EHB appeal would be deemed frivolous and result in the imposition of sanctions.
See Pa. R.A.P. 1551(a); Arnold v. Workers’ Comp. Appeal Bd. (Lacour Painting, Inc.), 110 A.3d
1063, 1071 (Pa. Cmwlth. 2015) (citations omitted) (“Our courts permit a litigant to make new
arguments on appeal in support of a preserved issue . . . but do not permit a party to advance an
entirely new and different theory of relief for the first time on appeal.”); Wert v. Dep’t of Transp.,
821 A.2d 182, 186 (Pa. Cmwlth. 2003).
18
relief had received inaccurate guidance from governmental entities regarding their
appellate rights and had relied on that information to their detriment. Finally,
Riverkeeper never explained to the EHB precisely why, nearly seven months after
the DEP’s approval of PPC’s application, Orion suddenly prompted it to decide that
a nunc pro tunc administrative appeal was the correct course of action.
Therefore, we agree with the EHB that Riverkeeper had no legal justification
for failing to file a timely appeal with the EHB. We conclude that the EHB did not
abuse its discretion in finding that Riverkeeper had shown neither that they relied on
the misleading February 25, 2017 DEP notice nor that they acted diligently to
preserve their appellate rights. Consequently, because Riverkeeper failed to establish
“good cause” to permit the filing of an appeal nunc pro tunc with the EHB, we affirm
the EHB’s October 24, 2017 Order.
__________________________________
ELLEN CEISLER, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
19
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
The Delaware Riverkeeper :
Network and Maya van Rossum, :
The Delaware Riverkeeper, :
Petitioners :
:
v. : No. 1571 C.D. 2017
:
Department of Environmental :
Protection, :
Respondent :
ORDER
AND NOW, this 1st day of August, 2018, the Order of the Pennsylvania
Environmental Hearing Board, dated October 24, 2017, is hereby AFFIRMED.
__________________________________
ELLEN CEISLER, Judge