Del. Riverkeeper Network v. Sec'y Pa. Dep't of Envtl. Prot.

PRECEDENTIAL
UNITED STATES COURT OF APPEALS
FOR THE THIRD CIRCUIT
___________
Nos. 16-2211, 16-2212, 16-2218, 16-2400
___________
DELAWARE RIVERKEEPER NETWORK; DELAWARE
RIVERKEEPER MAYA VAN ROSSUM,
Petitioners No. 16-2211
LANCASTER AGAINST PIPELINES,
Petitioner No. 16-2212
GERALDINE NESBITT,
Petitioner No. 16-2218
SIERRA CLUB,
Petitioner No. 16-2400
v.
SECRETARY PENNSYLVANIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION; PENNSYLVANIA
DEPARTMENT OF ENVIRONMENTAL PROTECTION,
Respondents
Transcontinental Gas Pipe Line Company, LLC,
Intervenor Respondent
__________
On Petition for Review of an Order of the Pennsylvania
Department of Environmental Protection
(FERC No. CP-15-138-000)
___________
Argued November 7, 2017
Before: JORDAN, HARDIMAN, and SCIRICA,
Circuit Judges
(Filed: September 4, 2018)
Aaron J. Stemplewicz [Argued]
Delaware Riverkeeper Network
925 Canal Street, Suite 3701
Bristol, PA 19007
Attorney for Petitioners Delaware Riverkeeper
Network and Delaware Riverkeeper Maya Van
Rossum
Mark L. Freed [Argued]
Jordan B. Yeager
Curtin & Heefner
2005 South Easton Road, Suite 100
Doylestown, PA 18901
Attorneys for Petitioners Lancaster Against Pipelines
and Geraldine Nesbitt
2
Diana A. Csank
Zachary M. Fabish
Sierra Club Environmental Law Program
50 F Street NW, 8th Floor
Washington, DC 20001
Attorneys for Petitioner Sierra Club
Alexandra C. Chiaruttini
Margaret O. Murphy
Pennsylvania Department of Environmental Protection
400 Market Street, P.O. Box 8469
Harrisburg, PA 17105
Joseph S. Cigan, III [Argued]
Pennsylvania Department of Environmental Protection
2 Public Square
Wilkes-Barre, PA 18701
Curtis C. Sullivan
Pennsylvania Department of Environmental Protection
909 Elmerton Avenue, 3rd Floor
Harrisburg, PA 17110
Jesse C. Walker
Pennsylvania Office of Attorney General
Department of Environmental Resources
P.O. Box 8464
Harrisburg, PA 17105
Attorneys for Respondents
3
Andrew T. Bockis
Saul Ewing Arnstein & Lehr
2 North Second Street
Penn National Insurance Plaza, 7th Floor
Harrisburg, PA 17101
Pamela S. Goodwin
Saul Ewing Arnstein & Lehr
650 College Road East, Suite 4000
Princeton, NJ 08540
Patrick F. Nugent
John F. Stoviak [Argued]
Saul Ewing Artnstein & Lehr
1500 Market Street
Centre Square West, 38th Floor
Philadelphia, PA 19102
Elizabeth U. Witmer
Saul Ewing Arnstein & Lehr
1200 Liberty Ridge Drive, Suite 200
Wayne, PA 19087
Attorneys for Intervenor Respondent
4
____________
OPINION OF THE COURT
____________
HARDIMAN, Circuit Judge.
These consolidated petitions for review concern the
Atlantic Sunrise Project, an expansion of the natural-gas
distribution network owned by Intervenor Transcontinental
Gas Pipe Line Company (Transco). 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), 870
F.3d 171, 178 (3d Cir. 2017): 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.
5
I
A
We begin with a brief overview of the regulatory
background. The Natural Gas Act prohibits construction or
operation of a natural gas pipeline without a Certificate of
Public Convenience and Necessity from the Federal Energy
Regulatory Commission (FERC). 15 U.S.C. § 717f(c)(1)(A).
And since many other federal laws and regulations apply to
pipeline projects, FERC often requires a showing of
compliance with those other mandates as part of its permitting
process. See id. § 717f(e) (authorizing FERC to grant
Certificates subject to “reasonable terms and conditions”).
FERC did so here, preventing Transco from starting
construction on Atlantic Sunrise until it demonstrates “that it
has received all applicable authorizations required under
federal law.” Transcontinental Gas Pipe Line Co, LLC
(Transco), 158 F.E.R.C. ¶ 61125, at App. C ¶ 10 (2017).
One such authorization is a discharge permit under
Section 404 of the Clean Water Act. 33 U.S.C. § 1344(a).
Because obtaining a Section 404 permit is a federal
requirement and the construction and operation of Atlantic
Sunrise “may result in a[] discharge into . . . navigable waters,”
Transco must also comply with Section 401 of the Clean Water
Act. Id. § 1341(a)(1). 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. Id. Because of these
statutory requirements, Transco had to obtain a Water Quality
Certification from PADEP before FERC would approve the
pipeline project.
6
B
In an attempt to satisfy the obligations just described, in
the spring of 2015 Transco applied both to FERC for a
Certificate of Public Convenience and Necessity and to
PADEP for a Water Quality Certification. Shortly thereafter,
PADEP published notice in the Pennsylvania Bulletin
(Pennsylvania’s answer to the Federal Register) of its intent to
grant Transco a Water Quality Certification. 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. Three of
those conditions are relevant here, requiring Transco to obtain
the following from PADEP:
1. a permit under the National Pollutant
Discharge Elimination System, 25 PA.
CODE §§ 92a.1–.104, covering the
discharge of water during hydrostatic
pipeline testing;
2. a permit under Chapter 102 of PADEP’s
own regulations, 25 PA. CODE §§ 102.1–
.51, covering erosion and sediment
disturbance associated with pipeline
construction; and
3. a permit under Chapter 105 of the
Department’s regulations, 25 PA. CODE
§§ 105.1–.449, covering obstructions of
and encroachments on Pennsylvania
waters.
7
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).1 The Board
has stayed its proceedings pending our jurisdictional ruling, so
we turn to that issue now.
II
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. 15 U.S.C. § 717r(d)(1) (cross-
referencing 15 U.S.C. § 717f). We have previously held that
when PADEP issues a Water Quality Certification, it does so
“pursuant to federal law,” Del. Riverkeeper Network v. Sec’y
Pa. Dept. of Envtl. Prot. (Riverkeeper I), 833 F.3d 360, 370–
72 (3d Cir. 2016), 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. Relying on the First
Circuit’s decision in Berkshire Environmental Action Team,
1
See Lancaster Against Pipelines v. Commonwealth,
No. 2016-075-L (Pa. Envtl. Hrg. Bd.); Nesbitt v.
Commonwealth, No. 2016-076-L (Pa. Envtl. Hrg. Bd.); Sierra
Club v. Commonwealth, No. 2016-078-L (Pa. Envtl. Hrg. Bd.).
8
Inc. v. Tennessee Gas Pipeline Co., LLC, 851 F.3d 105 (1st Cir.
2017), they argue (1) that the Natural Gas Act permits this
Court to hear suits challenging only a state agency’s final
action, and (2) that PADEP’s Water Quality Certification is
non-final until the EHB rules on Petitioners’ administrative
appeal. We address both issues in turn.
A
Like the petitions here, Berkshire Environmental
involved the Natural Gas Act, the Clean Water Act, and a
state’s administrative procedures. In that case, FERC granted a
pipeline company a Certificate of Public Convenience and
Necessity subject to essentially the same condition imposed
here—the company would have to demonstrate it had received
all of its federal permits in order to build its pipeline. Berkshire
Environmental, 851 F.3d at 107. The company subsequently
applied for and received a Water Quality Certification from the
Massachusetts Department of Environmental Protection
(MassDEP) after a notice-and-comment procedure. Id. at 107–
08. Under Massachusetts law, aggrieved parties then had 21
days to “appeal” that initial decision by demanding a hearing
before MassDEP. Id. at 108, 112–13.
Like Transco here, the pipeline company argued that
MassDEP had no authority to hear such an appeal in light of
the First Circuit’s original and exclusive jurisdiction under the
Natural Gas Act. Id. at 108. And like Petitioners here, the
challengers in Berkshire Environmental asked for a declaration
that the Water Quality Certification would become final and
reviewable by the Court of Appeals only at the conclusion of
their state administrative appeals. Id. The First Circuit agreed
with the challengers on the jurisdictional question, holding that
9
the Natural Gas Act permits review of only an agency’s final
decisions. Id. at 111.
Our sister court’s reasoning is straightforward and
persuasive: Although “[i]n a literal sense, state agencies
repeatedly take ‘action’ in connection with applications for
water quality certifications,” Congress did not intend for us to
“exercise immediate review over [the many] . . .
preliminary . . . steps that state agencies may take in processing
an application before they actually act in the more relevant and
consequential sense of granting or denying it.” Id. at 108. To
be sure, the Natural Gas Act’s reference to state “action” does
not expressly restrict our review to an agency’s ultimate
decisions, but there is a “well-settled ‘strong presumption that
judicial review will be available only when agency action
becomes final.’ To say that silence on the subject implies no
requirement of finality would be to recognize this ‘strong
presumption’ only when it is of little benefit.” Id. at 109
(quoting Bell v. New Jersey, 461 U.S. 773, 778 (1983))
(citations and alterations omitted). We therefore join the First
Circuit in holding that the Natural Gas Act provides
jurisdiction to review only “final agency action of a type that
is customarily subject to judicial review.” Id. at 111.
In resisting that conclusion, PADEP and Transco rely
almost entirely on Tennessee Gas Pipeline Co. LLC v.
Delaware Riverkeeper Network, 921 F. Supp. 2d 381 (M.D.
Pa. 2013), which held that the Natural Gas Act gives this Court
“an unqualified right of review” over even non-final Water
Quality Certifications. Id. at 391. We reject that proposition.
Tennessee Gas failed to acknowledge our longstanding
presumption that Congress intends judicial review over only
final administrative action. Instead, it framed the issue as
whether to graft onto the Natural Gas Act a finality requirement
10
that the district court regarded as “originating in state law.” Id.To be sure, deciding on a PADEP decision’s finality requires
reference to the Pennsylvania procedures that produced it. But
it remains the case that the finality requirement itself, along
with the presumption that Congress intended us to apply it, are
creatures of federal, not state, law.
We are likewise unpersuaded by Tennessee Gas’s
analysis of the Second Circuit’s decisions in Islander East
Pipeline Co., LLC v. Connecticut Department of
Environmental Protection, 482 F.3d 79 (2d Cir. 2006), and
Islander East Pipeline Co., LLC v. McCarthy, 525 F.3d 141(2d Cir. 2008). In both Islander cases, the Second Circuit
confronted a situation much like this one and proceeded
without analysis, “as if there were no hurdles in appealing
directly from the determination of a state administrative body.”
Tennessee Gas, 921 F. Supp. 2d at 393. Implicit in that course
of action, the district court concluded, was a “determination
that it is not necessary for a state administrative quasi-judicial
body to first review the . . . issuance . . . of permits by a state
administrative agency before judicial review . . . may be
sought.” Id. Tennessee Gas incorrectly treated the Islander
cases, in which “jurisdiction [was] . . . assumed by the parties,
and assumed without discussion by the court,” as authority on
the question presented here. Goldman v. Citigroup Glob. Mkts.
Inc., 834 F.3d 242, 251 (3d Cir. 2016). Such “drive-by
jurisdictional ruling[s]” would have carried no precedential
weight even had they been decided by this Court. Id.B
We turn next to whether the Department’s decision is a
conclusive agency action, such that a “civil action for [its]
review” is committed to our exclusive jurisdiction under the
11
Natural Gas Act. This is not the first time we have considered
the finality of a PADEP Water Quality Certification issued for
a federally-regulated pipeline. In Riverkeeper II, we held that
such an approval was final and reviewable because the time to
appeal to the EHB had already passed. 870 F.3d at 177. Noting
the pendency of the petitions now before us—in which most of
the Petitioners had already taken parallel protective appeals to
the EHB—Riverkeeper II expressly declined to consider
whether the availability of further state administrative review
would render the Department’s decision non-final. Id. at 178.
We answer that question now.
The standard for whether agency action is final is a
familiar one: “Final agency action ‘must mark the
consummation of the agency’s decisionmaking process,’ ‘must
not be of a merely tentative or interlocutory nature,’ and ‘must
be one by which rights or obligations have been determined, or
from which legal consequences will flow.’” Id. at 176 (quoting
Bennett v. Spear, 520 U.S. 154, 177–78 (1997)) (internal
quotation marks omitted); accord Berkshire Environmental,
851 F.3d at 111.2 Although the decisionmaking process we are
reviewing is defined by Pennsylvania law, we nevertheless
2
We recognize that many (if not most) decisions
addressing administrative finality arise in the context of the
Administrative Procedure Act, see 5 U.S.C. § 704, rather than
agency-specific review provisions like the one we consider
here. Nevertheless, we think that the case law evaluating
finality under the APA is instructive, and see no reason why
finality under the Natural Gas Act should be evaluated any
differently. We will therefore follow Riverkeeper II’s approach
of measuring finality in this context against “the traditional
hallmarks of final agency action.” 870 F.3d at 178.
12
apply a federal finality standard to determine whether
Congress has made the results of that process reviewable under
the Natural Gas Act.
We begin by surveying Pennsylvania’s procedures for
obtaining and appealing a Water Quality Certification. First,
the applicant submits a request to PADEP. PENNSYLVANIA
DEPT. OF ENVTL. PROT. BUREAU OF WATER QUALITY
PROTECTION, NO. 362-2000-001, PERMITTING POLICY AND
PROCEDURE MANUAL [hereinafter PERMITTING MANUAL]
§ 400 at 6. The Department places a notice in the Pennsylvania
Bulletin, beginning a 30-day comment period. Id. PADEP then
makes its decision, and “[t]he issuance or denial of [the] Water
Quality Certification[] . . .is published in the Pennsylvania
Bulletin as a final action of the Department.” Id. Aggrieved
parties have 30 days from the date of publication to file an
appeal to the EHB. 25 PA. CODE § 1021.52(a)(1), 2(i).
The EHB is wholly separate from PADEP. The Board
is an “independent quasi-judicial agency,” 35 PA. STAT. ANN.
§ 7513(a), and its members—full-time administrative law
judges—are appointed by the Governor of Pennsylvania
without any involvement by either PADEP or the state’s
Secretary of Environmental Protection, id. § 7513(b). Final
orders of the EHB may be appealed to the Commonwealth
Court. 42 PA. CONS. STAT. § 763(a)(1).
Two features of the Board’s review deserve special
mention. First, an appeal to the EHB does not prevent
PADEP’s decision from taking immediate legal effect. The
statute creating the Board expressly provides that “[n]o appeal
shall act as an automatic supersedeas,” 35 PA. STAT. ANN.
§ 7514(d)(1), and the EHB itself regards it as “axiomatic that
the mere pendency of litigation before the Board . . . has no
13
effect on the validity or viability of the Department action
being appealed . . . . An appeal to the Board does not operate
as a stay,” M&M Stone Co. v. Commw. of Pa., Dept. of Envtl.
Prot., EHB Docket No. 2007-098-L, 2009 WL 3159149, at *3
(Pa. Envtl. Hrg. Bd. Sept. 7, 2009) (citations omitted). Second,
the EHB’s review of PADEP decisions is conducted largely de
novo, with parties entitled to introduce new evidence and
otherwise alter the case they made to the Department. While
Pennsylvania law refers to proceedings before the EHB as an
“appeal,” the Commonwealth Court has explained that the
Board is not an “appellate” tribunal in the ordinary sense of
that term. The Board does not have “a limited scope of review
attempting to determine if [PADEP]’s action can be supported
by the evidence received . . . [by PADEP]. Rather, the
[Board’s] duty is to determine if [PADEP]’s action can be
sustained or supported by the evidence taken by the [Board].”
Leatherwood, Inc. v. Commw., Dept. of Envtl. Prot., 819 A.2d
604, 611 (Pa. Commw. Ct. 2003) (emphasis added) (citation
omitted).
Once again relying heavily on Berkshire
Environmental, Petitioners claim we may not review PADEP’s
issuance of a Water Quality Certification until the Board
adjudicates their appeal. After holding that its jurisdiction
under the Natural Gas Act covered only final action, the First
Circuit concluded that the Massachusetts Water Quality
Certification then under its review was non-final so long as the
petitioners could still appeal within MassDEP. Citing
similarities between the Massachusetts and Pennsylvania
procedures, Petitioners ask us to reach the same conclusion
here. We disagree, primarily because there are important
distinctions between the Massachusetts and Pennsylvania
schemes.
14
Two aspects of Pennsylvania’s system for issuing Water
Quality Certifications distinguish PADEP’s decision from the
non-final one in Berkshire Environmental. First, the
Department’s decision here was immediately effective,
notwithstanding Petitioners’ appeals to the EHB. The
Department’s decision was neither “tentative [n]or
interlocutory” and was one “from which legal
consequences . . . flow[ed].” Riverkeeper II, 870 F.3d at 176
(quoting Bennett, 520 U.S. at 177–78) (internal quotation
marks omitted). The First Circuit, by contrast, faced a
Massachusetts regulatory regime in which the agency’s initial
decision was ineffective until either the time to appeal expired
or a final decision on appeal issued. See 310 MASS. CODE
REGS. 9.09(1)(e); see also Berkshire Envtl., 851 F.3d at 108
(noting that the Water Quality Certification expressly forbade
any work under its auspices until “the expiration of the Appeal
Period . . . and any appeal proceedings”). Put another way,
Berkshire Environmental addressed a provisional order that
could become final in the absence of an appeal, while we are
presented with a final order that could be overturned in the
event of an appeal. In that regard, PADEP’s order is no less
final for the availability of EHB review than a federal agency’s
is for the availability of review in this Court.
Second, unlike in Massachusetts, Pennsylvania law
does not “make[] clear that [Transco]’s application seeking
a . . . water quality certification initiated a single, unitary
proceeding” taking place within one agency and yielding one
final decision. Berkshire Envtl., 851 F.3d at 112. Quite the
opposite. The Department and the Board are entirely
independent agencies. Each conducts a separate proceeding,
under separate rules, overseen by separately appointed officers.
Compare 25 PA. CODE. Part I (Department of Environmental
15
Protection), with 25 PA. CODE. Part IX (Environmental
Hearing Board). Both in formal terms, see PERMITTING
MANUAL, supra, § 400 at 6 (noting that publication in the
Pennsylvania Bulletin marks a “final action of the
Department”), and in the immediate practical effect discussed
above, PADEP’s issuance of a Water Quality Certification is
that agency’s final action, leaving nothing for the Department
to do other than await the conclusion of any proceedings before
the Board.3
Whether state law permits further review by the same
agency that makes the initial decision or provides for an appeal
to a structurally-separate body is probative of whether that
decision is final. Finality, at bottom, is “concerned with
whether the initial decisionmaker has arrived at a definitive
3
Petitioners emphasize another parallel between EHB
review in Pennsylvania and an adjudicatory hearing in
Massachusetts: both conduct de novo review without deference
to the appealed decision. And to be sure, the First Circuit relied
in part on the fact that “the adjudicatory hearing [was] a review
of [the pipeline company]’s application, rather than a review
of a prior agency decision.” Berkshire Envtl., 851 F.3d at 112.
But the court in Berkshire Environmental did not rely on the
fact of de novo review for its own sake in finding the agency’s
initial decision non-final. Rather, it concluded that the decision
was non-final because several features of Massachusetts’s
administrative scheme—de novo review among them—
combined to produce a “review” process that “continue[d]
more or less as though no decision ha[d] been rendered at all.”
See id. The same cannot be said of review by the EHB in
Pennsylvania, which takes place after a decision that has
immediate legal effect.
16
position on the issue,” and PADEP has said its piece regardless
of whether Pennsylvania law gives a different agency the last
word. Williamson Cty. Reg’l Planning Comm’n v. Hamilton
Bank of Johnson City, 473 U.S. 172, 193 (1985) (emphasis
added). In that respect, finality is “conceptually distinct” from
the related issue of exhaustion of administrative remedies. Id.at 192–93. Here, Petitioners confine themselves to challenging
the finality of PADEP’s decision, and do not argue that we lack
jurisdiction because of a failure to exhaust an appeal to the
EHB.
Petitioners do not rest exclusively on the comparison
between this case and Berkshire Environmental. Nevertheless,
we find their other arguments no more persuasive.
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. 35 Pa. Stat. Ann. § 7514(c). 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
17
evidentiary hearing,” but this “is not such an instance.” See
Nat’l Labor Relations Bd. v. ARA Servs., Inc., 717 F.2d 57, 67
(3d Cir. 1983). 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.” See Bank of N. Shore
v. Fed. Deposit Ins. Corp., 743 F.2d 1178, 1184 (7th Cir.
1984). 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.
Notwithstanding the availability of an appeal to the
EHB, PADEP’s issuance of a Water Quality Certification was
final in precisely the most important ways that the permit in
Berkshire Environmental was not. The Department’s action
presents all the “traditional hallmarks of final agency action,”
Riverkeeper II, 870 F.3d at 178, and we have exclusive
jurisdiction to hear any “civil action for the review” of such a
decision. We now turn to Petitioners’ challenges to the merits
of the Department’s decision.
III
Petitioners make four separate arguments on the
substance of their claims.4 First, they claim PADEP failed to
provide the public notice the Clean Water Act requires prior to
issuing a Water Quality Certification. Second, they contend the
Department acted arbitrarily and capriciously by issuing a
Water Quality Certification that was immediately effective
despite being conditioned on Transco obtaining additional
4
Not every petitioner joins in every argument. For the
sake of simplicity we refer generically to “Petitioners.”
18
permits in the future. Third, pointing out that PADEP’s
approval was necessary for Transco to begin eminent domain
proceedings under the Natural Gas Act, Petitioners argue that
the Department’s decision deprived them of due process and
violated the Fifth Amendment’s Takings Clause. Finally,
Petitioners assert that the Department’s action violated its
obligation to safeguard the Commonwealth’s natural resources
under Article I, Section 27 of the Pennsylvania Constitution.
We address these arguments seriatim.
A
The Clean Water Act obliges state agencies to comply
with a number of procedural requirements before issuing a
Water Quality Certification. As relevant here, Section 401
requires PADEP to “establish procedures for public notice in
the case of all applications for certification.” 33 U.S.C.
§ 1341(a)(1). No party disputes that the Department has a
longstanding written policy, published in its Permitting
Manual, that when it “receives a request for Water Quality
Certification, a notice is published in the Pennsylvania Bulletin
for a 30-day comment period.” PERMITTING MANUAL, supra,
§ 400 at 6. And no party disputes that the Department followed
that policy here. Nevertheless, Petitioners claim it was
insufficient to satisfy Section 401. We disagree.
First, Petitioners cite several cases in which “[c]ourts
have found that Section 401(a)(1)’s notice requirements are
met where the state codifies the notice requirements by statute
or regulation.” Riverkeeper Br. 25–26. But none of those
decisions—and nothing in the text of the Clean Water Act—
requires a State to establish its notice procedures by way of
regulation. The fact that formal rulemaking is sufficient to
19
satisfy the requirement of established notice procedures does
not mean it is necessary.
Second, Petitioners claim this Court has already “held”
that PADEP has “failed to ‘establish’ procedures for public
notice” under Section 401. Riverkeeper Br. 26–27. Petitioners’
only support for that claim is a single clause in our decision in
Riverkeeper I: “PADEP has not published any procedures for
issuing Water Quality Certifications.” 833 F.3d at 385.
Reading that clause in context, however, makes clear that it
does not refer to PADEP’s procedures for providing public
notice of Section 401 applications. Indeed, PADEP’s notice
procedures were not at issue in that case. Rather, we considered
PADEP’s procedures for processing such applications—what
information the agency would gather and evaluate before
issuing a Water Quality Certification. Id. at 385–86. Contrary
to Petitioners’ suggestion, we have never held anything with
respect to PADEP’s notice procedures.
Third, Petitioners suggest that “PADEP itself has
implicitly conceded” its failure to establish adequate notice
procedures by publishing a draft of new procedures for
considering Section 401 Certifications, including notice
procedures. Riverkeeper Br. 27–28. We are unpersuaded. The
Department has not conceded that its existing notice
procedures are legally inadequate by moving to promulgate a
single set of rules governing the entire Water Quality
Certification process.
Finally, Petitioners contend that Section 401 required
PADEP to immediately give full notice not only of Transco’s
application for a Water Quality Certification, but also of the
three substantive permits on which the Department proposed
to condition its approval. That argument also fails. Notice need
20
only be adequate to allow interested parties to participate
meaningfully in the process that is actually pending, and
PADEP’s process for granting Water Quality Certifications
does not involve immediate consideration of any substantive
permits. This Court approved that arrangement just two years
ago, holding that when the Department conditions a
Certification on the later acquisition of other permits, the
agency may issue the Certification without engaging in the
substantive review that will eventually be required to grant the
permits. Riverkeeper I, 833 F.3d at 387–88. Since PADEP is
not required to conduct that review at this stage, it would make
little sense to require it to provide notice of the same.
B
Petitioners also assert that the Department’s decision to
issue a Water Quality Certification now, conditioned on
Transco obtaining substantive permits later, was arbitrary,
capricious, or otherwise not in accordance with law. Petitioners
make two versions of that argument. First, they claim
PADEP’s decision was arbitrary because it certified Atlantic
Sunrise’s water quality compliance based on a pledge that
Transco would demonstrate substantive compliance in a future
permit application rather than in the application for the Water
Quality Certification itself. Without that present demonstration
of compliance, Petitioners argue, PADEP’s decision that
Atlantic Sunrise would comply with Pennsylvania water
quality standards could not have been based on anything but
guesswork. Second, Petitioners say the Department failed to
follow its own procedures, which they claim require the agency
to consider applications for Water Quality Certifications
simultaneously with any applicable substantive permits.
21
Both of those arguments—which at bottom focus on the
timing rather than the substance of the Department’s
decision—are foreclosed by our decision in Riverkeeper I. In
that case, we held that PADEP’s preferred procedure for
considering Certifications along with other permits was not
arbitrary or capricious because—since no construction can
begin before the Department grants the substantive permits,
and all interested parties will have a full opportunity to weigh
in when PADEP considers applications for those permits—the
petitioners could not show they had been harmed by the
Department’s sequencing choice. Riverkeeper I, 833 F.3d at
386–87. The same analysis applies with equal force here.
Petitioners attempt to distinguish this case by arguing that they
have been harmed by the Department’s choice not to provide
notice of the substantive permits upon which it conditioned the
Water Quality Certification. But as we discussed herein,
Petitioners will suffer no harm from PADEP’s decision to
provide notice of those permits at the time it actually considers
them.
C
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. 15 U.S.C. § 717f(h). The
Certificate of Public Convenience and Necessity establishes
the legal right to take property; in a condemnation proceeding
under the Natural Gas Act, the “only open issue [is] the
compensation the landowner defendant will receive in return
for the easement.” Columbia Gas Transmission, LLC v. 1.01
22
Acres, More or Less in Penn Twp., York Cty., Pa., Located on
Tax ID #440002800150000000 Owned By Brown, 768 F.3d
300, 304 (3d Cir. 2014). 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.
Regardless of its underlying merits, and setting aside
questions about whether the Clean Water Act could ever
provide a vehicle to raise a takings argument, see Gunpowder
Riverkeeper v. FERC, 807 F.3d 267, 274–75 (D.C. Cir. 2015)
(concluding that “an injury arising specifically by reason of
eminent domain” falls outside the zone of interests protected
by the statute), that claim cannot succeed because Petitioners
have presented it in the wrong forum. Their argument does not
challenge PADEP’s judgment that Transco will comply with
Pennsylvania’s water-quality standards. Nor does it ask this
Court to review the Department’s reasoning, its procedures, or
the facts on which it based its decision. 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. See 15 U.S.C. § 717r(a)–
(b); Williams Nat. Gas Co. v. City of Okla. City, 890 F.2d 255,
264 (10th Cir. 1989). 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.
23
D
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.
Transco responds that a state constitutional claim is not
cognizable in this proceeding, arguing that by vesting
jurisdiction in this Court to review PADEP’s Certification
decision, the Natural Gas Act provides for only a narrow scope
of review that does not permit us to hear state-law claims.
Transco points to § 717r(d)(3) of the Act, which states that if
the reviewing court of appeals finds that an agency’s action
was “inconsistent with the Federal law governing such permit
and would prevent the construction, expansion or operation of
the facility . . . , the Court shall remand the proceeding to the
agency.” 15 U.S.C. § 717r(d)(3) (emphasis added). In
Transco’s view, the statute’s requirement that we remand to the
agency when certain conditions are met implies that remand is
the only remedy available to us, and then only under the
conditions just quoted. Therefore, Transco asserts, we may not
reach the merits of Petitioners’ claim under the Pennsylvania
Constitution. We cannot agree.
The provision of the Natural Gas Act that actually
grants us jurisdiction, 15 U.S.C. § 717r(d)(1), is quite
capacious. It empowers us to hear “any civil action” seeking
“review” of federal permits required by interstate pipelines.
24
And ordinarily, when such agency action is “made reviewable
by statute,” 5 U.S.C. § 704, the Administrative Procedure Act
authorizes a broad scope of review, without limiting courts to
considering only federal law, see id. § 706. Nothing in
§ 717r(d)(3) says differently; it simply requires reviewing
courts to apply a particular remedy when certain conditions are
met. It says nothing about other circumstances, and we will not
imply from the statute’s silence that Congress intended to
restrict the language of its text. Congress does not “hide
elephants in mouseholes.” Whitman v. Am. Trucking Ass’ns.
Inc., 531 U.S. 457, 468 (2001).5
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. See supra III.B. Because Transco
will have to obtain those substantive permits to begin
construction—and PADEP will have to consider Article I,
5
The United States Court of Appeals for the Fourth
Circuit has recently reached the same conclusion. Sierra Club
v. U.S. Dep’t of the Interior, — F.3d —, 2018 WL 3717067, at
*25 (4th Cir. Aug. 6, 2018) (holding that when an agency’s
action would not “prevent the construction” of a pipeline,
§ 717r(d)(3) did not apply and “the APA’s default rule”
governed)
25
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.
* * *
For the reasons stated, we will deny the petitions for
review.
26