Cole, C. v. DEP, Aplt.

• Court: Supreme Court of Pennsylvania
• Decided: January 22, 2025
• Docket: 21 EAP 2023
• Status: Published

Opinion

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] [MO: Wecht, J.] IN THE SUPREME COURT OF PENNSYLVANIA EASTERN DISTRICT

CLIFFORD COLE, PAMELA WEST, : No. 21 EAP 2023 BRIAN,WEIRBACK, KATHY WEIRBACK, : TODD SHELLY AND CHRISTINE SHELLY, : Appeal from the Order of the : Commonwealth Court dated June Appellees : 15, 2021 at No. 1577 CD 2019, : Reversing and Remanding the : Order of the Pennsylvania v. : Environmental Hearing Board dated : October 9, 2019 at No. 2019-046-L. : PENNSYLVANIA DEPARTMENT OF : ARGUED: March 5, 2024 ENVIRONMENTAL PROTECTION, : : Appellant :

WEST ROCKHILL TOWNSHIP, : No. 22 EAP 2023 : Appellee : Appeal from the Order of the : Commonwealth Court dated June : 15, 2021 at No. 1595 CD 2019, v. : Reversing and Remanding the : Order of the Pennsylvania : Environmental Hearing Board dated DEPARTMENT OF ENVIRONMENTAL : September 25, 2019, at No. 2019- PROTECTION, : 039-L. : Appellant : ARGUED: March 5, 2024

CLIFFORD COLE, PAMELA WEST, BRIAN : No. 77 MAP 2023 WEIRBACK, KATHY WEIRBACK, TODD : SHELLY AND CHRISTINE SHELLY : Appeal from the Order of the : Commonwealth Court dated June : 15, 2021 at No. 1577 CD 2019, v. : Reversing and Remanding the : Order of the Pennsylvania : Environmental Hearing Board dated PENNSYLVANIA DEPARTMENT OF : October 9, 2019 at No. 2019-046-L ENVIRONMENTAL PROTECTION : : ARGUED: March 5, 2024 : APPEAL OF: ADELPHIA GATEWAY, LLC : WEST ROCKHILL TOWNSHIP : No. 78 MAP 2023 : : Appeal from the Order of the v. : Commonwealth Court dated June : 15, 2021 at No. 1595 CD 2019, : Reversing and Remanding the DEPARTMENT OF ENVIRONMENTAL : Order of the Pennsylvania PROTECTION : Environmental Hearing Board dated : September 25, 2019, at No. 2019- : 039-L APPEAL OF: ADELPHIA GATEWAY, LLC : : ARGUED: March 5, 2024

CONCURRING OPINION

JUSTICE MUNDY DECIDED: January 22, 2025 I agree with the Third Circuit’s holding in the Riverkeeper cases that DEP’s

permitting decisions are final for purposes of that court’s review pursuant to Section

717r(d)(1) of the Natural Gas Act, 15 U.S.C. § 717r(d)(1). See Delaware Riverkeeper

Network v. Secretary of Pennsylvania Department of Environmental Protection, 870 F.3d

171 (3d Cir. 2017) (Riverkeeper II); Delaware Riverkeeper Network v. Secretary

Pennsylvania Department of Environmental Protection, 903 F.3d 65 (3d Cir. 2018)

(Riverkeeper III). Given the particularities of Pennsylvania’s permit granting process,

however, I am constrained to concur with the Majority that an appeal from DEP’s

permitting decision to the EHB is not a “civil action” as that phrase is used in Section

717r(d)(1). As the Third Circuit explained in Township of Bordentown, New Jersey v.

Federal Energy Regulatory Commission, 903 F.3d 234 (3d Cir. 2018), a “civil action”

“refers only to civil cases brought in courts of law or equity and does not refer to hearings

or other quasi-judicial proceedings before administrative agencies.” Bordentown, 903

F.3d at 267. While the EHB is an independent entity completely separate from DEP,

differentiating Pennsylvania’s permitting scheme from those of New Jersey and

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] [MO: Wecht, J.] - 2 Massachusetts, analyzed in Bordentown and Berkshire Environmental Action Team v.

Tennessee Gas, 851 F.3d 101 (1st Cir. 2017), respectively, it is not a court of law or equity

but, rather, a quasi-judicial agency. See 35 P.S. § 7513(a) (“The [EHB] is established as

an independent quasi-judicial agency.”). As such I agree with the Majority’s determination

that Section 717r(d)(1) does not preempt EHB’s review of DEP’s permitting decisions in

these cases.

With that said, I would be remiss if I did not acknowledge the outcome of this

Court’s decision. Undue delays with regard to energy infrastructure development should,

for obvious reasons, be avoided where reasonably possible. In this respect, Congress’s

purpose in enacting Section 717r(d)(1) was “to streamline the review of state decisions

taken under federally [ ] delegated authority.” Delaware Riverkeeper Network v.

Secretary Pennsylvania Department of Environmental Protection, 822 F.3d 360, 370 (3d

Cir. 2016) (Riverkeeper I). Today’s decision will undoubtedly stymie that purpose. For

instance, there will inevitably be dual track litigation, with cases simultaneously

proceeding in the Third Circuit, as permitted pursuant to Riverkeeper III, and the EHB.

This runs the risk of contradictory decisions, extending the length of litigation, and

delaying ultimate permitting determinations. See generally Tennessee Gas Pipeline Co.

LLC v. Delaware Riverkeeper Network, 921 F. Supp. 2d 381, 387-88 (M.D. Pa. 2013)

(articulating similar concerns). In the alternative, permitting decisions may bounce back

and forth between DEP and EHB, delaying Third Circuit review indefinitely. The EHB can

remand a permitting decision back to DEP with instruction to revise DEP’s decision

consistent with the EHB’s determination. Would an aggrieved party then be able to

appeal DEP’s revised decision back to the EHB, evading Third Circuit review? Congress

could not have reasonably intended these outcomes as they are the opposite of

“streamlin[ing] review of state decisions[.]”

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] [MO: Wecht, J.] - 3 Whatever Congress’s intent was, our holding today is mandated by its use of the

phrase “civil action” in Section 717r(d)(1). If Congress truly wants to bypass EHB review

and channel all challenges of DEP permitting decisions involving interstate pipeline

projects directly to the Third Circuit, it has the ability to amend Section 717r(d)(1)’s

language so that the exclusivity of federal circuit review is not limited specifically to “civil

actions.”

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] [MO: Wecht, J.] - 4