West Rockhill Twp v. DEP; Apl of: Adelphia Gateway

• Court: Supreme Court of Pennsylvania
• Decided: January 22, 2025
• Docket: 78 MAP 2023
• Status: Published

Opinion

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

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, McCAFFERY, JJ.

CLIFFORD COLE, PAMELA WEST, BRIAN : No. 21 EAP 2023 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

OPINION

JUSTICE WECHT DECIDED: January 22, 2025

This appeal lies at the intersection of state administrative and federal judicial

jurisdiction, implicating the supremacy of federal law 1 and implied federal preemption of

state regulation. 2 The cases involved are factually complex, but the question is

straightforward: May the challenger of a decision by Pennsylvania’s Department of

Environmental Protection (“DEP”) concerning a permitting decision under the federal

1 The Supremacy Clause of the United States Constitution provides that the Constitution and the laws of the United States “shall be the supreme Law of the Land; and the Judges in every State shall be bound thereby, any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2. 2 “Under the principles of field (or implied) preemption, state law may be displaced ‘if federal law so thoroughly occupies a legislative field as to make reasonable the inference that Congress left no room for the States to supplement it.’” Werner v. Plater- Zyberk, 799 A.2d 776, 787 (Pa. Super. 2002) (quoting Orson, Inc. v. Miramax Film Corp., 189 F.3d 377, 381 (3d Cir. 1999)).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 2 Natural Gas Act (“NGA”) 3 seek review of the DEP’s decision before Pennsylvania’s

Environmental Hearing Board (“EHB”), or does jurisdiction over the appeal lie exclusively

with the United States Court of Appeals for the Third Circuit? The Commonwealth Court

held that the challenger may seek review directly before the EHB. We affirm.

I. Environmental Regulation in Pennsylvania

In Pennsylvania environmental law, the DEP is the “executive branch, assigned

various duties to implement and enforce environmental statutes and regulations.” 4

Among its delegated duties is the enforcement of the requirements of the federal Clean

Air Act (“CAA”), 5 as well as the related enforcement of Pennsylvania’s Air Pollution

Control Act (“APCA”). 6 The CAA obligates “Each State” to adopt, “for any air pollutant,”

a state implementation plan (“SIP”) “which provides for implementation, maintenance, and

enforcement of [the national] primary [ambient air quality] standard in each air quality

control region (or portion thereof) within such State.” 7

3 See 15 U.S.C. §§ 717-717z. 4 Tire Jockey Serv., Inc. v. DEP, 915 A.2d 1165, 1185 (Pa. 2007) (quoting DEP v. N. Am. Refractories Co., 791 A.2d 461, 462 (Pa. Cmwlth. 2002)). 5 See 42 U.S.C. §§ 7401-7671q. 6 See Act of Jan. 8, 1960, P.L. 2119, 35 P.S. §§ 4001-4015; see also 35 P.S. § 4004 (“The department shall have the power and its duty shall be to—(1) Implement the provisions of the Clean Air Act in the Commonwealth.”). 7 42 U.S.C. § 7410(a)(1). An account of the Commonwealth’s SIP is provided in the joint brief of amici curiae Delaware Riverkeeper Network, Citizens for Pennsylvania’s Future, Clean Air Council, and Mountain Watershed Association. See Riverkeeper Br. at 9-11.

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 3 While the DEP plays the executive part, Pennsylvania’s Environmental Quality

Board, responsible for administrative rule-making, plays an essentially legislative role. 8

Filling out this paradigm, the EHB serves as “an independent quasi-judicial agency.” 9 As

such, the EHB “has the power and duty to hold hearings and issue adjudications under”

the Administrative Agency Law 10 “on orders, permits, licenses or decisions of the

[DEP].” 11 Critically, while a given action implicating the CAA and regulated under the

NGA may begin with the DEP, none of the DEP’s decisions or actions “adversely affecting

a person shall be final as to that person until the person has had the opportunity to appeal

the action to the [EHB] under subsection (g) [“Procedure”]. If a person has not perfected

an appeal in accordance with the regulations of the [EHB], the [DEP’s] action shall be

final as to the person.”12 The relevant regulation affords “[t]he person to whom the action

of the [DEP] is directed or issued” thirty days after receipt of notice of the action to seek

EHB review, and gives any other aggrieved person thirty days after publication of the

action in the Pennsylvania Bulletin or thirty days after actual notice, if the action is not

8 Tire Jockey, 915 A.2d at 1185. 9 35 P.S. § 7513(a); see generally Environmental Hearing Board Act of 1988, Act of July 13, 1988, P.L. 530, No. 94, 35 P.S. §§ 7511-7516. From 1971-1988, the EHB was “an administrative body within DEP.” Cole v. DEP, 257 A.3d 805, 809 (Pa. Cmwlth. 2021); see generally Act of Dec. 3, 1970, Pub. L. No. 834 (repealed 1988). 10 See, 2 Pa.C.S. §§ 501-08. 11 35 P.S. § 7514(a). 12 Id. § 7514(c).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 4 published. 13 EHB decisions are appealable in the first instance to the Commonwealth

Court 14 and thereafter to this Court on a discretionary basis. 15

Although the legislature and this Court have employed the terminology of “appeals”

to the EHB, as in Section 7514 and in Tire Jockey, 16 EHB proceedings have trial-like

qualities—in particular the EHB’s discretion to take evidence beyond that of record from

the original submissions to the DEP. “[T]he EHB’s duty is to determine if [the] DEP’s

action can be sustained or supported by the evidence taken by the EHB.” 17

II. The Factual and Procedural Background

Why does this matter? Here is why: the Commonwealth Court held that an appeal

to the EHB from a DEP decision is not a “civil action” as that term is used in the NGA

provision that Appellants maintain preempts EHB review in this case. The NGA provision

states, in relevant part, as follows:

The United States Court of Appeals for the circuit in which a facility . . . is proposed to be constructed, expanded, or operated shall have original and exclusive jurisdiction over any civil action for the review of an order or action of a federal agency . . . or State administrative agency acting pursuant to Federal law to issue, condition, or deny any permit, license, concurrence or approval . . . required under Federal law. 18

13 25 Pa. Code § 1021.52. 14 42 Pa.C.S. § 763(a)(1). 15 Id. § 724. 16 See Tire Jockey, 915 A.2d at 1177 (“[T]he EHB held hearings on TJS’s appeal of the DEP January 2001 Order and the DEP permit denial.” (emphasis added)). 17 Pa. Trout v. DEP, 863 A.2d 93, 106 (Pa. Cmwlth. 2004). 18 15 U.S.C. § 717r(d)(1) (emphasis added).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 5 Due to its conclusion that an EHB appeal is not a “civil action,” the Commonwealth Court

ruled that the NGA does not preempt EHB consideration of the challenge to the DEP

approval here at issue. We granted allowance of appeal in order to consider this

jurisdictional question. 19

A. The Administrative Proceedings

At the heart of this matter is Intervenor-Appellant Adelphia Gateway’s (“Adelphia”)

proposed Quakertown Compressor Station in West Rockhill Township, Bucks County,

which is part of the Adelphia Gateway Project. That project “involves the purchase,

construction, and operation of an interstate natural gas transmission infrastructure

between Pennsylvania and Delaware.”20 In furtherance of this project, Adelphia first

obtained a certificate of public convenience from FERC under the NGA, 21 which

generally—and in this case—is conditioned on obtaining applicable state approvals. 22

Separately, Adelphia sought approval for the station from the Pennsylvania DEP under

the CAA and APCA.

19 The questions as to which we granted review in the two cases captioned in this decision are numerous and redundant. See Cole v. DEP, 302 A.3d 1194 (Pa. 2023) (per curiam); Cole v. DEP, 302 A.3d 1195 (Pa. 2023) (per curiam). They are all fairly encompassed in one question stated in the latter order: “Did the Commonwealth Court err in deciding that the [EHB] has jurisdiction to hear appeals of DEP actions on projects regulated by the Federal Energy Regulatory Commission [(“FERC”)] under the [NGA] when the [NGA] grants the Third Circuit original and exclusive jurisdiction to review state agency actions related to interstate domestic energy projects?” Cole, 302 A.3d 1195, 1195; see also Cole, 257 A.3d at 808 (identifying the lone question as “whether [Section 717r(d)(1)] divests the EHB of its subject matter jurisdiction to hear [Appellees’] appeal from DEP’s approval of the Quakertown Compressor Station[?]”). 20 Cole, 257 A.3d at 809. 21 See 15 U.S.C. § 717f(c). 22 See Twp. of Bordentown v. FERC, 903 F.3d 234, 243 (3d Cir. 2018).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 6 On April 19, 2019, the DEP approved the station, but it noted that this approval

was subject to review by the EHB if review was sought within thirty days of receipt of the

notice of approval. 23 Challenger-Appellees in these cases, West Rockhill and a group of

individual opponents led by Clifford Cole, filed separate appeals of the approval before

the EHB, with the DEP as the nominal opponent. Adelphia intervened in both cases,

aligned with the DEP in defense of its permits.

Adelphia filed motions to dismiss in both cases, contending that, because DEP

approval was a federally delegated permitting decision under the CAA, review was

committed exclusively to the Third Circuit under Section 717r(d)(1)’s conferral of “original

and exclusive jurisdiction over any civil action for the review of an order or action of a . . .

State administrative agency acting pursuant to Federal law” in granting or denying a

permit under the NGA. 24 Thus, on Adelphia’s account, the EHB lacked jurisdiction over

Appellees’ appeals.

The EHB agreed, and it dismissed both cases. On the EHB’s account, “[t]he Third

Circuit has now repeatedly ruled [in the Riverkeeper cases] that it has original and

exclusive jurisdiction to review [DEP]-issued permits that are required under” the NGA. 25

23 Cole, 257 A.3d at 810. 24 15 U.S.C. § 717r(d)(1). 25 W. Rockhill Twp. v. DEP, EHB Docket No. 2019-039-L, at 2 (Sept. 25, 2019) (citing Del. Riverkeeper Network v. Sec’y, DEP, 783 Fed. App’x 124 (3d Cir. 2018) (Riverkeeper IV); Del. Riverkeeper Network v. Sec’y, DEP, 903 F.3d 65 (3d Cir. 2018) (Riverkeeper III); Del. Riverkeeper Network v. Sec’y, DEP, 870 F.3d 171 (3d Cir. 2017) (Riverkeeper II), Del. Riverkeeper Network v. Sec’y, DEP, 833 F.3d 360 (3d Cir. 2016) (Riverkeeper I)) (EHB decisions may be searched by docket or party name at http://ehb.courtapps.com/public/commonsearch_ehb.php.). Riverkeeper I was decided relative to both Pennsylvania and NJ law, while Riverkeeper II, III, and IV involved (continued…)

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 7 The EHB acknowledged a Third Circuit case involving New Jersey law that might be read

to the contrary, 26 but maintained that the Riverkeeper cases controlled. The EHB saw

no legitimate basis for distinguishing the [DEP’s CAA approval] from the other governmental actions at issue in the Riverkeeper cases. Because the [DEP’s] issuance of the plan approval for the FERC-regulated Quakertown compressor station is required by federal law and [is] issued pursuant in part to federal law, the Riverkeeper cases compel us to conclude that its review is subject to the exclusive jurisdiction of the Third Circuit. 27

Accordingly, the EHB dismissed Appellants’ appeal in the West Rockhill litigation in

September 2019. A couple of weeks later, the EHB summarily dismissed the appeal in

the parallel Cole litigation, with a citation to its decision in West Rockhill Township. 28

B. The Commonwealth Court Appeal

Present Appellees—as well as West Rockhill, which for reasons explained below

is not participating in this appeal—appealed the EHB’s dismissals to the Commonwealth

Court, which—like the EHB—explained its ruling at length in one of the instant cases and

resolved the other by cross-referencing the first. Here, however, the fully elaborated

decision came in Cole rather than in West Rockhill. 29 In Cole, after painstakingly

reviewing the statutory texts and the cases relied upon by the EHB, the court reversed

Pennsylvania law. Notably, the EHB wholly elided the statutory phrase “civil action” from this statement. 26 Id. at 3 (citing Bordentown, 903 F.3d at 268 (rejecting Third Circuit preemption of administrative review under Section 717r(d)(1) because preemption applies only to “civil actions” brought before a court of law or equity)). We review Bordentown at length below. 27 Id. at 3-4. 28 Cole v. DEP, EHB Docket No. 2019-046-L (Oct. 9, 2019). 29 See W. Rockhill Twp. v. DEP, 1595 C.D. 2019, 2021 WL 2426014 (Pa. Cmwlth. June 15, 2021) (en banc) (unpublished).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 8 the EHB’s jurisdiction-based dismissal and remanded to the EHB for full substantive

review of Appellees’ challenges.

In explaining its decision, the Commonwealth Court began by noting that it is not

bound by lower federal court decisions—even regarding interpretations of federal

statutes; only the United States Supreme Court’s interpretations bind state courts. 30

Nonetheless, the court echoed the Riverkeeper decisions in finding that NGA

Section 717r(d)(1) unambiguously conferred upon the United States Courts of Appeals

original and exclusive jurisdiction over any civil action challenging a final order of a state

agency regarding approvals (or denials) relative to projects governed by the NGA. 31 In

the relevant part of Riverkeeper I, the Commonwealth Court observed, the question was

not whether the underlying action was civil, but, rather, whether it implicated federal law

at all. 32 The Third Circuit concluded that the issue in that case did involve federal law

such that it had jurisdiction under Section 717r(d)(1). As well, the Commonwealth Court

asserted, the underlying action in that case undisputedly was civil in nature. 33 Meanwhile,

30 Cole, 257 A.3d at 813; see Hall v. PBPP, 851 A.2d 859, 865 (Pa. 2004) (Op. Announcing the Judgment of the Court) (“Within our federal system of governance, there is only one judicial body vested with the authority to overrule a decision that this Court reaches on a matter of federal law: the United States Supreme Court.”). The quoted language in Hall, and the detailed analysis therein of the question, appeared in an opinion expressing the views of three of seven Justices. However, the three dissenting Justices shared the view that the lower federal courts’ interpretations of federal law have only persuasive value in this Court. See Hall, 851 A.2d at 865 (Cappy, J., dissenting) (“Like the majority, I agree that a decision of an inferior federal court should be treated by this court as persuasive, but not binding, authority . . . .”). 31 Cole, 257 A.3d at 815. 32 Id. 33 Id. (“[The] challenge [in Riverkeeper I] was, based on the definition above, unquestionably a ‘civil action.’”).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 9 Riverkeeper II concerned the finality of a Pennsylvania DEP order for purposes of

invoking the Court of Appeals’ jurisdiction at all, not whether that jurisdiction over an

administrative action excluded state administrative jurisdiction. 34

In Riverkeeper III, on the Commonwealth Court’s apt account, the Third Circuit

took up a question related to—but not taken up in—Riverkeeper I: whether United States

Court of Appeals jurisdiction “was limited to final agency actions ‘and how such a

requirement would interact with Pennsylvania’s administrative scheme.’”35 Notably, the

finality requirement at issue in Riverkeeper III was not a matter of statutory law, but rather

a judicial overlay arising from the federal courts’ general reluctance to intrude upon

ongoing state-level administrative processes. 36

Once the Riverkeeper III court determined that finality of an administrative action

was a threshold condition for NGA jurisdiction—a principle it drew from Berkshire

Environmental and other authorities—it turned to consider whether the Pennsylvania

DEP’s order under challenge was final in the relevant sense. The Commonwealth Court

explained:

Applying the federal standard, the Third Circuit made several observations. It noted that once DEP makes a permitting decision, that decision is the final decision of DEP on the matter. Riverkeeper III, 903 F.3d at 72. Aggrieved parties may appeal that final agency action to the EHB, and final decisions of the EHB may be appealed to [the Commonwealth] Court. Id. Nonetheless, the Third Circuit took special note of Section 4(d)(1) of the EHB Act, 35 P.S. § 7514(d)(1), which provides that appeals to the EHB

34 Id. at 816. 35 Id. at 816-17 (emphasis added) (quoting Riverkeeper III, 903 F.3d at 68). 36 See Riverkeeper III, 903 F.3d at 70-71 (citing a “well-settled, strong presumption that judicial review will be available only when agency action becomes final” (internal quotation marks omitted) (quoting Berkshire Env’t Action Team, Inc. v. Tenn. Gas Pipeline Co., 851 F.3d 105, 109 (1st Cir. 2017) [hereinafter “Berkshire Environmental”])).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 10 “shall [not] act as an automatic supersedeas.” Id. (quoting 35 P.S. § 7514(d)(1)). The Third Circuit also noted that the EHB is an administrative agency independent of DEP, which reviews DEP’s decisions de novo. Id.

Returning to the federal definition of finality, the Third Circuit concluded that DEP’s permitting decision was the final action of DEP on the matter and was immediately effective regardless of the filing of an appeal with the EHB. In doing so, the Third Circuit distinguished the DEP permitting decision, which is “a final order that could be overturned in the event of an appeal,” from “a provisional order that could become final in the absence of an appeal.” Id. at 73.

****

“[F]inality,” the Third Circuit opined, “is ‘conceptually distinct’ from the related issue of exhaustion of administrative remedies.” Id at 74. . . . The Third Circuit noted that the petitioners did not argue that the Third Circuit lacked jurisdiction due to a failure to exhaust appeals to the EHB. Id.

Concluding its analysis of the jurisdictional question, the Third Circuit held:

Notwithstanding the availability of an appeal to the EHB, [DEP]’s issuance of a Water Quality Certification was final in precisely the most important ways. . . . [DEP’s] action presents all the “traditional hallmarks of final agency action,” and we have exclusive jurisdiction to hear any “civil action for the review” of such decisions.

Id. at 74-75 (emphasis added) (quoting Riverkeeper II, 870 F.3d at 178). 37

Ultimately, the Commonwealth Court distilled from Riverkeeper III two holdings:

(1) “Judicial review under Section 717r(d)(1) is limited to final state agency actions that

fall within the scope of the provision”; and (2) “for purposes of federal law, a DEP

permitting decision that falls within the scope of the provision is as final for review by the

37 Cole, 257 A.3d at 817-18 (some citations modified, others omitted). We note that, were this strictly a matter of state law, exhaustion would have been required. See, e.g., Empire Sanitary Landfill, Inc. v. DER, 684 A.2d 1047, 1053-54 (Pa. 1996). However, failure to exhaust appears only to affect the availability of state judicial review, not federal jurisdiction, at least under NGA Section 717r as interpreted by the Court of Appeals.

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 11 Third Circuit as it is final for review by the EHB.” 38 The Commonwealth Court also

underscored what the Riverkeeper III court appeared to say: that nothing in those cases

suggested that Third Circuit jurisdiction over DEP orders, final or otherwise, preempted

administrative appeals to the EHB, as distinct from “civil actions.” 39

Taking as granted this finality requirement as well as the characterization of DEP

approval as “final” notwithstanding any EHB proceedings, the Cole court turned its focus

to the meaning of “any civil action” as that term is used in the NGA, a question that it

found unresolved by the Riverkeeper cases. The court identified this question as critical

(and ultimately dispositive) because the “original and exclusive” jurisdiction conferred by

NGA Section 717r is granted expressly with respect to “civil actions.” With that redirected

attention came the court’s interest in the Third Circuit’s Bordentown decision. There, the

Court of Appeals held that “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.” 40 Notwithstanding a structural difference between New

Jersey’s and Pennsylvania’s administrative regimes—New Jersey’s DEP (“NJDEP”) and

its administrative review body are under the same departmental umbrella, while the DEP

38 Cole, 257 A.3d at 818. 39 Id.; see Riverkeeper III, 903 F.3d at 74 (“Notwithstanding the availability of an appeal to the EHB, [the DEP’s] issuance of a Water Quality Certification was final in precisely the most important ways . . . .”). The court summarily described Riverkeeper IV as simply reinforcing Riverkeeper III’s conclusion about Circuit Court jurisdiction. We agree that Riverkeeper III suffices to stand for the relevant holdings of Riverkeeper IV. See Cole, 257 A.3d at 818 (“Riverkeeper IV . . . offer[s] nothing more, as [the Third Circuit] simply reference[s] and incorporate[s] the decision in Riverkeeper III to reject ripeness challenges to [its] jurisdiction.”). 40 Bordentown, 903 F.3d at 267; see Cole, 257 A.2d at 814.

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 12 and EHB are independent agencies in Pennsylvania—the Commonwealth Court found

them analogous on the quoted point. Regardless of whether the EHB was under the

same agency umbrella as DEP or operated independently, proceedings before it were

administrative rather than civil in nature. As such, they could not be preempted by a

statute that concerned only jurisdiction over “civil actions.”

To similar effect are various other rulings of this Court. In East v. WCAB, 41 for

example, this Court interpreted “civil action,” a statutorily undefined term, to exclude

“administrative actions, such as workers’ compensation proceedings.” 42 In that case,

after surveying hundreds of uses of “civil action” in various statutes, we observed that

evidence abounded of the legislature’s intent to distinguish civil actions from

“administrative proceedings,” with civil actions restricted to those “commenced and

conducted in a court of record, involving traditional common law claims for damages or

equitable relief governed by the Pennsylvania Rules of Civil Procedure.” 43 EHB

proceedings, the Commonwealth Court went on to explain in this case, do not resemble

civil actions so defined, notwithstanding their trial-like elements. As such, they fall on the

administrative side of the line, outside the preemptive reach of United States Court of

Appeals jurisdiction under the NGA. 44

41 828 A.2d 1016 (Pa. 2003). 42 Cole, 257 A.3d at 814; see East, 828 A.2d at 1022-23. 43 Cole, 257 A.3d at 815 (quoting East, 828 A.2d at 1021-22 (footnotes collecting statutory examples omitted)). 44 Id. (“Petitioners’ appeal to the EHB is an administrative proceeding, distinct from a civil action, and it lies properly before the EHB under Pennsylvania law.”).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 13 C. The Parallel Federal Litigation

After the Commonwealth Court decisions in Cole and West Rockhill issued, the

DEP and Adelphia filed petitions for allowance of appeal before this Court. At nearly the

same time, Adelphia filed suit in the United States District Court for the Middle District of

Pennsylvania seeking declaratory judgment to the effect that the EHB correctly ruled that

it lacked jurisdiction over Cole’s appeal—precisely the subject of the appeal before this

Court. In November 2021, the District Court ruled, inter alia, that the Commonwealth

Court’s ruling on that question collaterally estopped Adelphia from seeking relief in the

District Court and dismissed Adelphia’s suit. 45

Adelphia appealed that decision to the United States Court of Appeals for the Third

Circuit. On March 14, 2023, the Court of Appeals affirmed the District Court’s decision

dismissing Adelphia’s federal suit, reaffirming the Commonwealth Court’s jurisdiction to

hear the appeal of the EHB’s dismissal, and granting full faith and credit to the

Commonwealth Court’s ruling that EHB jurisdiction would lie, notwithstanding the then-

pending petitions for allowance of appeal before this Court. 46 “When a party has its day

45 See Adelphia Gateway, LLC v. Pa. EHB, 1:21-CV-1241, 2021 WL 5494286, at *9 (M.D. Pa. Nov. 23, 2021). The doctrine of collateral estoppel precludes relitigation of an issue determined in a previous action if: (1) the issue decided in the prior case is identical to the one presented in the later action; (2) there was a final adjudication on the merits; (3) the party against whom the plea is asserted was a party or in privity with a party in the prior case; (4) the party or person privy to the party against whom the doctrine is asserted had a full and fair opportunity to litigate the issue in the prior proceeding; and (5) the determination in the prior proceeding was essential to the judgment. Off. of Disciplinary Couns. v. Kiesewetter, 889 A.2d 47, 50-51 (Pa. 2005). 46 See Adelphia Gateway, LLC v. Pa. EHB, 62 F.4th 819, 826-28 (3d Cir. 2023).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 14 in state court and loses,” explained the Third Circuit in Adelphia, “it is not permitted a do-

over in federal court. Were it otherwise . . . lower federal courts would sit as quasi-courts

of appeals over state courts.” 47

III. The EHB Has Jurisdiction Over the Underlying Appeal

On August 23, 2023, this Court issued its order granting the Appellants’ petitions

for allowance of appeal in the two cases now at bar. 48, 49

A. The Governing Standards

This case calls upon us first and foremost to interpret Section 717r(d)(1) of the

NGA.

“The construction of a federal statute is a matter of federal law.” Council 13, Am. Fed’n of State, Cnty. & Mun. Emps., AFL-CIO ex rel. Fillman v. Rendell, 986 A.2d 63, 80 (Pa. 2009). Pursuant to federal rules of statutory construction, the courts consider the particular statutory language, as well as the design of the statute and its purposes in determining the meaning of a federal statute. Id. (citing Crandon v. United States, 494 U.S. 152, 158 (1990)). But, if the [statute’s] language is clear, we should refrain from searching other sources in support of a contrary result. See Ali v. Fed. Bureau of Prisons, 552 U.S. 214, 228 (2008) (“We are not at liberty to rewrite the statute to reflect a meaning we deem more desirable.”); Carter v. United States, 530 U.S. 255, 271 (2000) (statutory interpretation “begins

47 Id. at 828. 48 Because the federal litigation had the potential to answer the critical questions presented in the instant appeal, on June 8, 2022, this Court issued an order reserving decision on the pending petitions until the United States Court of Appeals issued its decision in Adelphia. 49 West Rockhill has declined to participate in this appeal, and has informed this Court that, during the pendency of the instant Petitions for Allowance of Appeal, West Rockhill withdrew its underlying EHB appeal. See West Rockhill Twp.’s Notice of Non- Participation, 8/18/2023 & Attachments A & B (Orders of Labuskes, EHB J., dismissing West Rockhill’s appeals at 2019-039-L and 2020-099-L). West Rockhill asserts that this renders the West Rockhill appeals moot. We agree. Accordingly, we hereby DISMISS the instant appeals at 22 EAP 2023 and 78 MAP 2023. This has no material bearing on the lone substantive question presented in both of the original cases. All briefs cited were filed or cross-filed in the Cole appeal.

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 15 by examining the text . . . not by psychoanalyzing those who enacted it”); United States v. Gonzales, 520 U.S. 1, 6 (1997) (where “[g]iven [a] straightforward statutory command, there is no reason to resort to legislative history”); Conn. Nat’l Bank v. Germain, 503 U.S. 249, 253-54 (1992) (“[I]n interpreting a statute a court should always turn first to one, cardinal canon before all others. We have stated time and again that courts must presume that a legislature says in a statute what it means and means in a statute what it says there. When the words of a statute are unambiguous, then, this first canon is also the last: ‘judicial inquiry is complete.’”); accord Dooner v. DiDonato, 971 A.2d 1187, 1195 (Pa. 2009) (“The language used by [Congress] is the best indication of its intent.”). 50

This case also implicates federal preemption, which brings to bear its own set of

governing principles of which we are mindful:

Article VI, cl. 2, of the United States Constitution, the Supremacy Clause, provides that the laws of the United States “shall be the supreme Law of the Land; . . . any Thing in the Constitution or Laws of any State to the Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2. Thus, according to the United States Supreme Court, laws that are in conflict with federal law are “without effect.” Altria Group, Inc. v. Stephanie Good, 555 U.S. 70, 76 (2008) (quoting Maryland v. Louisiana, 451 U.S. 725, 746 (1981)). . . .

In determining the breadth of a federal statute’s preemptive effect on state law, we are guided by the tenet that “the purpose of Congress is the ultimate touchstone in every pre-emption case.” Wyeth v. Levine, 555 U.S. 555, 565 (2009) (quoting Medtronic, Inc. v. Lohr, 518 U.S. 470, 485 (1996)). Congress may demonstrate its intention in various ways. It may do so through express language in the statute (express preemption). Yet, even if a federal law contains an express preemption clause, the inquiry continues as to the substance and the scope of Congress’ displacement of the state law. Altria Group, 555 U.S. at 77.

In the absence of express preemptive language, Congress’ intent to preempt all state law in a particular area may be inferred. This is the case where the scheme of federal regulation is sufficiently comprehensive to make reasonable the inference that Congress left no room for supplementary state regulation. That is to say, Congress intended federal law to occupy the entire legislative field (field preemption), blocking state efforts to regulate within that field. English v. Gen. Elec. Co., 496 U.S. 72, 79 (1990).

50 Samuel-Bassett v. Kia Motors Am., Inc., 34 A.3d 1, 51 (Pa. 2011) (citations modified).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 16 Finally, even where Congress has not completely displaced state regulation in a specific area, state law is nullified if there is a conflict between state and federal law (conflict preemption). Freightliner Corp. v. Myrick, 514 U.S. 280, 287 (1995). . . .

Additionally, concepts of federalism and state sovereignty make clear that in discerning whether Congress intended to preempt state law, there is a presumption against preemption. Altria Group, 555 U.S. at 77. Specifically, the United States Supreme Court has stated that “it will not be presumed that a federal statute was intended to supersede the exercise of the power of the state unless there is a clear manifestation of intention to do so.” N.Y. State Dep’t of Soc. Servs. v. Dublino, 413 U.S. 405, 413 (1973) (quoting Schwartz v. Texas, 344 U.S. 199, 202-03 (1952)). 51

Germane and to similar effect to the overarching presumption against preemptive

effect is the above-mentioned bias in favor of the uninterrupted completion of state

administrative proceedings before federal court intervention. 52

B. Finality of Administrative Action

The Commonwealth Court in this case took as granted the putative requirement of

administrative finality as well as the Third Circuit’s determination that DEP decision-

making is final upon issuance, notwithstanding the availability of review before the EHB.

We also take as granted the administrative finality requirement. We are less sanguine

about the Third Circuit’s decision as to what comprises final administrative action within

our own state administrative system, especially when it is inferred from what amounts to

circumstantial conjecture and when it contradicts an express state statutory provision. 53

51 Dooner, 971 A.2d at 1193-94 (Pa. 2009) (citations modified; emphasis in original). 52 See Bell v. New Jersey, 461 U.S. 773, 778 (1983). 53 See 35 P.S. § 7514(c) (“[N]o action of the [DEP] adversely affecting a person shall be final as to that person until the person has had the opportunity to appeal the action to the [EHB] under subsection (g). If a person has not perfected an appeal in accordance with the regulations of the [EHB], the department’s action shall be final as to the person.” (emphasis added)).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 17 On the subject of finality, the Riverkeeper III court relied substantially upon the

First Circuit decision in Berkshire Environmental. In Berkshire Environmental, the gas

company received from FERC a certificate of public necessity under the NGA. The

certificate was conditioned, inter alia, on compliance with the federal Clean Water Act as

determined by the Massachusetts Department of Environmental Protection (“MassDEP”).

MassDEP ultimately granted conditional certification, including a condition that forbade

the gas company from commencing any work until “the expiration of the Appeal Period

set forth below and any appeal proceedings that may result from an appeal.” 54

Massachusetts regulations imposed a 21-day window for such appeals. An appeal was

filed, and the gas company sought a stay of administrative proceedings based upon the

claim that, upon MassDEP’s allowance of a conditional approval under the CWA,

jurisdiction over any further challenge shifted to the United States Court of Appeals under

the NGA.

The gas company did not argue that MassDEP’s decision was final in itself, but

contended that NGA Section 717r contained no finality requirement because it referred

to state “action” but did not use the word finality. The company contrasted this silence

with the reference to “final agency action” found in Section 704 of the federal

Administrative Procedure Act. 55 But, in the face of the “strong presumption” that judicial

review must await final agency action, the court refused to draw the negative inference

54 Berkshire Env’t, 851 F.3d at 108. 55 See 5 U.S.C. § 704 (“Agency action made reviewable by statute and final agency action for which there is no other adequate remedy in a court are subject to judicial review.” (emphasis added)); see also Berkshire Env’t, 851 F.3d at 108-09.

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 18 that MassDEP’s undisputedly non-final action was subject to immediate First Circuit

review. 56

More importantly for our purposes, the Berkshire Environmental court

distinguished Section 717r’s highly detailed account of the internal review process for

FERC decisions 57 from its omission of any such account of state administrative

procedures. The best explanation for the distinction, the court opined, was that Congress

intended to account for the fact that “state procedures giving rise to orders reviewable

under [Section] 717r(d)(1) may (and undoubtedly do) vary widely from jurisdiction to

jurisdiction.” 58 Thus, the omission of reference to “final” agency action merely preserved

the flexibility required to anticipate the many variations of state processes to which the

NGA would have to adapt. 59

The court also noted that the requirement of finality is reinforced, rather than

contradicted, by Congress’s interest in ensuring that review happens in a reasonable

amount of time. It did this not by short-circuiting state review, but by imposing measures

designed to keep state proceedings moving. 60 “A Congress that placed so much

emphasis upon avoiding delay in the adjudication of requests for [FERC certification

under the Clean Water Act] would not likely have intended to authorize the delay that

56 Berkshire Env’t, 851 F.3d at 109 (citing Bell, 461 U.S. at 778). 57 See generally 15 U.S.C. § 717r(b) (“Review of Commission order”) (walking through the procedure for challenging a FERC order in considerable detail). 58 Berkshire Env’t, 851 F.3d at 109. 59 Incidentally, this at least hinted that Congress intended to leave any question concerning when state action becomes final to the vicissitudes of state law. 60 Id. at 109-10 (detailing measures designed to ensure timely conduct of state permit review).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 19 interlocutory reviews of every state agency action, final or not, would inevitably

engender.” 61

The court went on to explain that agency action is “final” where it “represents the

culmination of the agency’s decisionmaking process and conclusively determines the

rights and obligations of the parties with respect to the matters at issue.” 62 The court

noted that the MassDEP action had some qualities of final agency action: it was stated in

affirmative terms, the available adjudicatory review was described as an appeal, and the

letter embodying MassDEP’s conditional approval would assume the force of law in the

absence of a timely-filed petition for an adjudicatory hearing. 63

But the First Circuit cited several interrelated, countervailing considerations. First,

applying for a water quality certification initiated a “single, unitary proceeding, an essential

part of which is the opportunity . . . to have an adjudicatory hearing.” 64 Second, the

adjudicatory hearing in question was “a review of [the gas company’s] application, rather

than a review of a prior agency decision. MassDEP accords no deference to the

preliminary findings included in [MassDEP’s] certification.”65 And third,

the manner in which Massachusetts has chosen to structure its internal agency decision-making strikes us as hardly unusual or contrived. It allows for unopposed actions to proceed to finality without the time and expense of full-blown adjudicatory proceedings, while preserving the parties’ rights to such proceedings when sought. With the taking of evidence and de novo

61 Id. at 110. 62 Id. at 111 (quoting Rhode Island v. EPA, 378 F.3d 19, 23 (1st Cir. 2004)). 63 Id. 64 Id. at 112. 65 Id.

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 20 consideration, it bears the hallmarks of decision-making by expert administrative agencies rather than those of judicial review. 66

In many respects, the relationship between Pennsylvania DEP permitting and EHB

review bears characteristics that resemble those which the Berkshire Environmental court

found to militate in favor of ruling that finality must await all stages of administrative

review. However, despite relying upon Berkshire Environmental for the basic finality

requirement, as explained below, the Riverkeeper III court viewed some of the very same

factors contrarily as militating in favor of a finding of finality upon DEP approval without

regard to the prescribed adjudicatory review by EHB. Moreover, it seemed to do so based

solely upon the fact that the EHB is nominally fashioned in Pennsylvania as an

independent, quasi-judicial body and MassDEP is not, notwithstanding that the

parameters and nature of its role in the process are, as a practical matter, very difficult to

distinguish from the Massachusetts procedures described in Berkshire Environmental.

The Riverkeeper III court proceeded from the broadly acceptable premise that

finality is required, which it found persuasively established by the Berkshire

Environmental court. But it took a very different view of what comprised finality in

Pennsylvania, approaching the matter as a question of federal rather than state law. 67 It

then noted two criteria from which it derived the conclusion that DEP action is final

notwithstanding the availability or even the pendency of EHB review. First, the Third

Circuit asserted, “an appeal to the EHB does not prevent [DEP’s] decision from taking

66 Id. (emphasis added). 67 Riverkeeper III, 903 F.3d at 72 (“Although the decisionmaking process we are reviewing is defined by Pennsylvania law, we nevertheless apply a federal finality standard to determine whether Congress has made the results of that process reviewable under the [NGA].”).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 21 immediate legal effect.” 68 Specifically, an EHB appeal in itself does not operate as an

automatic stay upon the DEP’s decision.

Second, the court highlighted precisely the considerations that the Berkshire

Environmental court found favored an understanding that finality would not be achieved

until any state-provided review was complete:

EHB’s review of [DEP] decisions is conducted largely de novo, with parties entitled to introduce new evidence and otherwise alter the case they made to the [DEP]. While Pennsylvania law refers to proceedings before the EHB as an “appeal,” the Commonwealth Court has explained that the [EHB] is not an “appellate” tribunal in the ordinary sense of that term. . . . 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, 819 A.2d 604, 611 (Pa. Cmwlth. 2003) (emphasis added) (citation omitted). 69

The Riverkeeper III court did not explain why similar considerations were incorrectly

assessed in the First Circuit as favoring treating the adjudicatory review process as part

and parcel of a unitary state administrative proceeding. Nor did the court in any way

distinguish Massachusetts from Pennsylvania law in a way that overcame these obvious

similarities, except by reference to the absence of an automatic supersedeas pending

EHB review. Setting aside a fair question as to whether that distinction can do the work

that the Court of Appeals asked it to, we find it noteworthy that the court did not even

acknowledge EHB’s authority to enter such a supersedeas upon request of a party. 70

The Riverkeeper III court went on to suggest as a distinction from Massachusetts

law the fact that the DEP’s decision was not “tentative or interlocutory,” because—

68 Id. 69 Id. at 72-73 (citation modified). 70 35 P.S. § 7514(d)(1).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 22 ostensibly unlike Massachusetts—DEP’s initial decision was not “ineffective until either

the time to appeal expired or a final decision on appeal issued.” 71 In so holding, though,

the Riverkeeper III court ignored without explanation the express statutory provision

providing—just like the proviso imposed by the Massachusetts certification at issue in

Berkshire Environmental—that a DEP order is not final until the time to seek EHB review

has expired. It is true that filing for a hearing before the EHB review does not work as an

automatic stay. 72 But EHB has statutory authority to impose one upon request, 73 further

bringing its authority and function into line with the adjudicatory body in Massachusetts.

We are not persuaded that Pennsylvania’s system is so different in function from

Massachusetts’ system. The essential similarities between Massachusetts’

administrative and quasi-adjudicative two-step process and our own are too obvious to

disregard for what amount to formal rather than substantial reasons. And insofar as the

Riverkeeper III court cited precisely the same factors in support of pre-appeal finality that

the Berkshire Environmental Court cited in support of deferring finality pending

administrative review, we are left to conclude that the respective opinions are

contradictory, which militates against taking the Third Circuit’s nonbinding decision as

gospel.

71 Riverkeeper III, 903 F.3d at 73. 72 See 35 P.S. § 7514(d)(1) (“No appeal shall act as an automatic supersedeas.”). 73 Id. In assessing the sufficiency of the cause shown, the EHB may consider the risk of “irreparable harm to the petitioner,” “the likelihood of the petitioner prevailing on the merits,” and “the likelihood of injury to the public or other parties, such as the permittee in third party appeals.” Id. §§ 7514(d)(1)(i)-(iii).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 23 This is especially the case given the Third Circuit’s decision to determine what

constitutes final action in Pennsylvania state proceedings, all the more when it reaches a

conclusion implicating state law to at least some extent, a conclusion that contradicts

Pennsylvania’s own statute on precisely that subject—a statute that brings Pennsylvania

law closer into line with Massachusetts.

In this regard, the Riverkeeper III court explained:

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 [the DEP] 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 P.S. § 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 [the DEP] has taken final action. 74

This brief passage disregards the Third Circuit’s entire effort to distinguish the Berkshire

Environmental decision from Riverkeeper III, which effort was wrapped up in a

comparative examination of state law and procedure—one we find unconvincing for the

reasons set forth above.

We respectfully decline to adopt the Third Circuit’s decision to cast aside

Pennsylvania’s own understanding of its administrative system as described by the very

legislature that devised that system in the first place. The General Assembly’s express

reservation of finality in Section 7514 reflects the Pennsylvania legislature’s own view of

74 Riverkeeper III, 903 F.3d at 74 (citation modified). For reasons previously stated, we do not agree with the Riverkeeper III court regarding the “underlying reality” of finality upon DEP decisionmaking, which contradicts Section 7514(c)’s demurral of finality during the period when EHB review may be invoked.

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 24 the nature of state proceedings. The General Assembly intended that, despite their

organizational independence, the DEP and the EHB work together in sequence to ensure

sufficient process and oversight to rule soundly upon a given environmental application.

This underscores our system’s general resemblance to that of Massachusetts in terms of

operation.

As noted, we don’t believe that Riverkeeper III and Berkshire Environmental can

be reconciled on the question of finality. Bound by neither, we are left to choose. On

balance, we find that Berkshire Environmental provides a more convincing account of

what comprises state finality: where a state has provided a two-stage process for the

issuance and final recognition of an environmental permit, those two stages combined

are the administrative process, not merely one of them. It is upon the completion of those

two phases—or the expiration of time to pursue review of the first decision—that finality

is achieved for purposes of Pennsylvania law. That is what ought to be recognized as

the finality requisite to federal review under the time-honored presumption that complete

state administrative processes are to be favored before the federal judiciary gets involved.

For these reasons, we respectfully disagree with the Third Circuit’s suggestion that

finality is achieved before EHB review is sought or the option to do so expires. To do

otherwise would fly directly in the face of our General Assembly’s manifestly contrary

intention. And it would contradict the persuasive reasoning of the Berkshire

Environmental court. 75

75 To the extent that the Commonwealth Court’s decision in this case can be read as an endorsement of that aspect of Riverkeeper III’s reasoning, we disapprove.

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 25 As we segue into our endorsement of the Commonwealth Court’s determination

that an administrative appeal is not a civil action in the relevant sense under

Section 717r(d)(1) of the NGA, we note that Bordentown speaks to both finality and what

constitutes a civil action. In so doing it further rebuts Appellants’ accounts of finality. 76

Appellants insist that Bordentown is disanalogous relative to finality. They base

this insistence upon a distinction between New Jersey and Pennsylvania’s regulatory

systems much like the distinction in Berkshire Environmental between intra-agency

review in Massachusetts and New Jersey and inter-agency review in Pennsylvania. But

in focusing upon preemptive effect, Adelphia sows a confusion exacerbated by the fact

that it appears to concede Bordentown’s validity for the proposition we find persuasive:

“In Bordentown, the Third Circuit held only that the NGA’s jurisdictional provision does

not divest the NJDEP of ‘its authority to review challenges to its permits via its established

administrative procedures.’” 77

This selective quotation seems to mask the court’s full comment, which favors our

account even more clearly:

We need not determine whether or not a NJDEP permitting decision is already final during the period when a party may still seek an adjudicatory hearing to challenge the permit because, as explained below, the fact that we may have immediate jurisdiction to hear a challenge to a permitting decision does not mean that the agency charged with administering the

76 Appellants’ positions in this case are supported by amicus curiae Transcontinental Gas Pipe Line Co. Appellees have the support of a joint brief submitted by amici curiae Delaware Riverkeeper Network; Citizens for Pennsylvania’s Future; Clean Air Council; and Mountain Watershed Association. 77 Adelphia’s Br. at 38 (quoting Bordentown, 903 F.3d at 271 n.24 (Adelphia’s emphasis)).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 26 permitting process is thereby divested of its authority to review challenges to its permits via its established administrative procedures. 78

In this passage, the Bordentown court explicitly declined to validate the distinction relative

to finality that Appellants would have us endorse. In so many words, the Bordentown

court reserved decision on whether, by virtue of New Jersey’s peculiar administrative

structure or otherwise, Riverkeeper III controls relative to finality. Concomitantly, the

Bordentown court declined to commit on its immediate federal jurisdiction mid-stream in

the New Jersey process, contradicting any argument that it is the absence of finality that

affords continuing New Jersey administrative jurisdiction. 79

C. Civil Actions

Having said all that, even if we assumed, like the Commonwealth Court, that DEP

action alone is final in the sense asserted by Riverkeeper III, we agree with the

Commonwealth Court that EHB review is not a “civil action” in the sense relevant to NGA

Section 717r(d)(1)’s assignment of original and exclusive jurisdiction to the United States

Court of Appeals. Like the Commonwealth Court, on this point, too, we find Bordentown

persuasive. Bordentown speaks to both state and federal law regarding what constitutes

a civil action, and it does so specifically in the context of Section 717r of the NGA. After

reviewing NGA Section 717r(d)(1)’s “original and exclusive” language, the Bordentown

court noted that such jurisdiction is, in plain language, limited to “civil action[s] for the

78 Bordentown, 903 F.3d at 271 n.24. 79 For these reasons, Adelphia’s contention that the Commonwealth Court’s reliance upon Bordentown “sweep[s] aside the Riverkeeper cases,” Adelphia’s Br. at 20, is unconvincing.

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 27 review of an order or action of a . . . State administrative agency.” 80 Noting the lack of a

federal statutory definition of “civil action,” the court turned to the phrase’s common

meaning in determining whether the phrase, as used in Section 717r, encompasses state

administrative proceedings.

First, the court noted that the United States Supreme Court has indicated

that “the word ‘action’ often refers to judicial cases, not to administrative ‘proceedings,’” West v. Gibson, 527 U.S. 212, 220 (1999), and has parsed statutes based on Congress’s understanding of the distinction between a civil “action” in a court and an administrative “proceeding” at the agency level, N.Y. Gaslight Club, Inc. v. Carey, 447 U.S. 54, 60-62 (1980). 81

United States Supreme Court decisions in numerous contexts have drawn the same

distinction. 82

If one does not consider the formal structural distinction between New Jersey’s

administrative process and our own material in the relevant aspects—and we do not—

Adelphia has no argument against Bordentown controlling in favor of EHB jurisdiction. 83

There is a colorable argument that the divergent structures make a difference with respect

to when finality attaches. But it is not at all clear why this should bear upon what

comprises a civil action—either way, the final review function is performed by an

administrative agency acting in a quasi-judicial capacity.

80 Bordentown, 903 F.3d at 267 (quoting 15 U.S.C. § 717r(d)(1)). 81 Id. (citations modified). 82 Id. (collecting cases). 83 See Adelphia’s Br. at 38-39. The DEP’s brief provides a more robust account of New Jersey’s administrative procedure in furtherance of establishing the putatively dispositive structural distinctions. See DEP’s Br. at 30-36. But as helpful as this briefing is on those technical matters, it begs the essential question of finality, and it says nothing about our own EHB Act’s statutory definition of finality or the parallel substantive purpose and practical effect of our administrative hearings.

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 28 The Commonwealth Court’s assessment of the distinction between administrative

and civil actions is reinforced by other provisions in Title 35—indeed in the APCA itself.

In Section 4013.6, addressing “[s]uits to abate nuisances and restrain violations,” the

legislature expressly distinguished administrative and civil matters. Specifically, the

statute authorizes any person to “commence a civil action to compel compliance with this

act or any rule, regulation, order or plan approval or permit issued pursuant to this act.”84

After underscoring that the Courts of Common Pleas have jurisdiction over such actions,

the provision goes on to note that the action may not be commenced “if the [DEP] has

commenced and is diligently prosecuting a civil action in a Federal or State court or is in

litigation before the [EHB] to require the alleged violator to comply with this act.”85 Here,

“civil action[s] in a Federal or State court” are distinguished from “litigation” before the

EHB. 86

In sum, we agree with the Commonwealth Court’s analysis establishing that an

EHB appeal is not, itself, a “civil action” as that term is used in Section 717r(d)(1). Thus,

an appeal duly brought before the EHB cannot be the sort of action over which the United

States Court of Appeals has “original and exclusive jurisdiction.”

84 35 P.S. § 4013.6(c). 85 Id. (emphasis added). 86 The Hazardous Sites Cleanup Act similarly recognizes the distinction, providing that the DEP “may as promptly as possible reach a final settlement with a responsible person in an administrative or civil action” under certain specified circumstances. Act of Oct. 18, 1988, P.L. 756, 35 P.S. § 6020.707(a) (emphasis added).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 29 D. EHB’s Enforcement Authority Under the CAA

The foregoing analysis disposes of the lion’s share of Appellants’ arguments. But

it remains for us to address one separate theory pressed by Adelphia in particular.

Adelphia argues that, because the EHB, unlike the DEP, is not specifically delegated

authority to render approvals under the CAA, its actions cannot be reviewed under the

plain language of NGA Section 717r(d)(1), which restricts review in the United States

Court of Appeals to “an order or action of a . . . state administrative agency acting

pursuant to Federal law.” 87 On Appellants’ account, only the DEP acts pursuant to

federally delegated authority. As such, any EHB involvement either would permanently

preclude federal court jurisdiction or would invite irreconcilably divergent rulings by the

Court of Appeals and the EHB, because EHB decisions would be federally

unreviewable. 88

The difficulty with this argument is highlighted best by Riverkeeper in its amicus

brief, which details EHB’s explicitly designated role in the process as defined in

Pennsylvania’s SIP, 89 which was approved and incorporated by the EPA, rendering it

tantamount to federal law. 90 The federal regulation recognizing Pennsylvania’s SIP

87 15 U.S.C. § 717r(d)(1) (emphasis added). 88 See Adelphia’s Br. at 35 (“To the extent that a state agency’s order under the CAA is enforceable, it must be one that is made reviewable under the NGA; otherwise Congress’s entire purpose in enacting § 717r(d)(1) would be lost.”). 89 Riverkeeper’s Br. at 9-11. 90 See 40 C.F.R. § 52.2020(a), (b); see Sierra Club v. La. Dept. of Env’t Quality, 100 F.4th 555, 564 (5th Cir. 2024) (“The fact that SIPs have the force and effect of federal law has been recognized by every federal circuit court to address the issue . . . .”).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 30 specified which provisions of the SIP were approved in this regard. 91 Among these was

the provision governing “Notice of basis for certain plan approval decisions,” which

provides that “[t]he action in [the DEP’s] notice shall be final and not subject to review

unless, within 30 days of the service of the notice, a person affected thereby appeals to

the EHB setting forth the grounds relied upon.” 92 This documents the EHB’s federally

approved role as a reviewing body of CAA decisionmaking. It also strongly suggests that

the EPA, at least, would not consider NGA Section 717r(d)(1) as preempting EHB review.

Not only does the SIP enshrine EHB review as part and parcel of Pennsylvania’s

system for exercising its delegated authority to enforce the CAA, it also provides support

for the foregoing finality analysis by implying that finality awaits EHB review when sought.

We may and do assume that the EPA approved Pennsylvania’s SIP with the

understanding that an independent administrative body had review authority over the

DEP’s initial decisionmaking under the CAA.

This contradicts Adelphia’s assertion that “the EHB does not act ‘pursuant to

Federal law,’ and does not ‘issue, condition, or deny’ any permits ‘required under Federal

law.’” 93 In this regard, Adelphia cites one Commonwealth Court case and an EHB

decision for the proposition that the most the EHB can do is direct DEP action, 94 which

ostensibly is not the same as “issu[ing], condition[ing], or deny[ing]” permits as

Section 717r(d)(1) describes them. Context matters, and we do not take this last

91 40 C.F.R. § 52.2020(c). 92 25 PA. CODE § 127.13c(d). 93 Adelphia’s Br. at 35 (quoting 15 U.S.C. § 717r(d)(1)). 94 Id. (citing Pequea Twp. v. Herr, 716 A.2d 678, 683, 687 (Pa. Cmwlth. 1998); City of Harrisburg v. DER, No. 88-120-R, 1996 WL 375864 (Pa. EHB June 28, 1996)).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 31 argument as given because it would require us to draw a hard distinction between the

DEP provisionally approving a permit and the EHB directing DEP action as to that permit.

Contrary to Adelphia’s claim, 95 this suggests that, even when EHB review is invoked,

review of that decision will lie in the Third Circuit via the DEP’s action in conformity with

the EHB’s determination, which administrative action perforce will be final in the relevant

sense.

E. Dual Jurisdiction

Finally, Appellants argue at some length that the apparent allowance for the dual

and/or simultaneous jurisdiction of the EHB and the United States Court of Appeals

subverts Congress’s intent to streamline natural gas approvals reflected in the NGA

generally, and specifically in the extraordinary conferral of “original and exclusive

jurisdiction” upon the Court of Appeals over civil actions challenging administrative

action. 96

We do not take this for granted. As noted earlier in this Opinion, Berkshire

Environmental convincingly suggested that it is the imposition of various time limits upon

state administrative proceedings that enables the simultaneous honoring of state

administrative prerogatives to which Congress chose to delegate federal enforcement

authority as well as the desire for expedited processes. 97

95 See id. at 36-38. 96 See id. at 42-48; DEP’s Br. at 21-29. 97 See Berkshire Env’t, 851 F.3d at 109-10 (detailing measures designed to ensure timely conduct of state permit review).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 32 While DEP cites prefatory provisions of Section 717 of the NGA to elucidate

Congress’s intent, 98 all that those speak to is the general interest in federal regulation. 99

That interest is uncontested here. The fact remains, whatever interest the government

took in federalizing natural gas regulation, it did not do so in derogation of the federal

delegation of CAA regulation to state agencies. Tellingly, the DEP quickly segues into a

discussion of extrinsic evidence of legislative intent, 100 but legislative history is immaterial

where the relevant statutory language is clear. For the reasons set forth above, the critical

statutory term, “civil action,” is unambiguous, and the non-statutory principle of awaiting

administrative finality is well-established in binding case law undisturbed by any provision

of the NGA identified by Appellants.

As importantly, though, the question of the availability of simultaneous review is

not before us. And everywhere we look to discern whether it is an inevitable consequence

of our ruling or those that went before, we find what appears to be dicta. 101 True,

Riverkeeper III seemed to suggest that parallel review was in the offing, as noted

98 See DEP’s Br. at 21-22. 99 15 U.S.C. § 717(a) (“Necessity of regulation in public interest”) (“[I]t is declared that the business of transporting and selling natural gas for ultimate distribution to the public is affected with a public interest, and that Federal regulation in matters relating to the transportation of natural gas and the sale thereof in interstate and foreign commerce is necessary in the public interest.”). 100 DEP’s Br. at 22-25. 101 “[D]icta is ‘an opinion by a court on a question that is directly involved, briefed, and argued by counsel, and even passed on by the court, but that is not essential to the decision. Dicta has no precedential value.’” Castellani v. Scranton Times, L.P., 124 A.3d 1229, 1243 n.11 (Pa. 2015) (quoting Valley Twp. v. City of Coatesville, 894 A.2d 885, 889 (Pa. Cmwlth. 2006)).

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 33 above, 102 but it is not clear that the conclusion was a necessary component or an

inexorable consequence of its holding. The Commonwealth Court in this case echoed

the same contingency, 103 but once again it was not necessary to resolve that issue to

speak to the stand-alone question presented regarding EHB’s jurisdiction to conduct

administrative review of the DEP action here.

Now as well we need not decide the matter, nor will we. Our views are immaterial,

both as a function of judicial restraint and because it is, if not technically beyond our

purview in an appropriate case, at least better resolved by the federal courts. The federal

half of the putative simultaneous jurisdiction is a pure question of federal law. Unlike the

question regarding finality, we discern no state component to the inquiry. And unlike the

question regarding what makes a “civil action,” we do not believe it is effectively settled

as a matter of both state and federal law as handed down by the final authority, the

Supreme Court of the United States. 104

102 See Riverkeeper III, 903 F.3d at 74-75 (“Notwithstanding the availability of an appeal to the EHB, [the DEP]’s issuance of a Water Quality Certification was final in precisely the most important ways . . . . [The DEP’s] action presents all the ‘traditional hallmarks of final agency action,’ and we have exclusive jurisdiction to hear any ‘civil action for the review’ of such a decision.” (emphasis added) (quoting Riverkeeper II, 870 F.3d at 178)). 103 Cole, 257 A.3d at 821 (“We agree with the Third Circuit that, notwithstanding the ability to directly challenge the plan approval in the Third Circuit, EHB review was available if desired.” (emphasis in original)). 104 We recognize that, after (but in connection with) this argument, Adelphia provides a detailed argument in favor of preemption itself. See Adelphia’s Br. at 48-57. However, these arguments, while thorough on the subject, ultimately are predicated on Adelphia’s views about finality, what constitutes a civil action, and its broader assumptions regarding Congressional intent and how that informs the various considerations at issue in this case. Our rejection of the former two positions, and our doubts regarding Appellants’ account of what Congressional intent requires, effectively cut the legs out from under the pure arguments for implied preemption. We grant that NGA Section 717r contains an express (continued…)

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 34 IV. Conclusion

The EHB was too quick to disclaim its own jurisdiction over Appellees’

administrative appeal in this case. Nothing in state or federal law compelled its decision,

and aspects of Riverkeeper III in particular strongly suggested that EHB retained

jurisdiction over Appellees’ administrative appeal as such. Whether Appellees

individually or collectively might instead have filed a civil action before the United States

Court of Appeals is not our concern. Nor is it directly at issue in this case. We accepted

review to determine whether EHB had jurisdiction over the instant appeals. We hold that

it did.

We hereby affirm the ruling of the Commonwealth Court, and we remand to that

court for the purpose of remanding this matter to EHB for a decision on the merits.

Chief Justice Todd and Justices Donohue, Dougherty and McCaffery join the

opinion.

Justice Dougherty files a concurring opinion in which Justices Donohue and

McCaffery join.

preemption term, but only as to civil actions. We will not read it more broadly than its terms. Dooner, 971 A.2d at 1194 (“[C]oncepts of federalism and state sovereignty make clear that in discerning whether Congress intended to preempt state law, there is a presumption against preemption.”). Adelphia also makes a token wave at arguing that the Commonwealth Court improperly “implicated” an exhaustion requirement incompatible with federal law. Adelphia’s Br. at 41-42. As the Commonwealth Court acknowledged in this case, “The question whether administrative remedies must be exhausted is conceptually distinct . . . from the question whether an administrative action must be final before it is judicially reviewable.” Williamson Cnty. Reg’l Planning Comm’n v. Hamilton Bank of Johnson City, 473 U.S. 172, 192 (1985); see Cole, 257 A.3d at 817-18. No one is questioning that proposition, nor is such a question essential to the lower court’s, or this Court’s, analyses, which are compatible with the proposition.

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 35 Justice Mundy files a concurring opinion.

Justice Brobson did not participate in the consideration or decision of this matter.

[J-13A-2024, J-13B-2024, J-13C-2024 and J-13D-2024] - 36