Third Circuit tosses Pa. environmentalists’ challenge to pipeline
The Legal Intelligencer
An environmental group dedicated to protecting Pennsylvania waterways has lost in its challenge to the issuance of a Clean Water Act certification to the company building an extension to the Transcontinental Pipeline.
The U.S. Court of Appeals for the Third Circuit denied Delaware Riverkeeper Network’s petition to review the Clean Water Act certification awarded to Transcontinental Gas Pipe Line Co. by the Pennsylvania Department of Environmental Protection.
The court ruling clears a roadblock, allowing the controversial extension of the “Transco” pipeline across Pennsylvania and other Northeastern states, an operation called “Atlantic Sunrise.”
Before any gas drilling or pipe construction can begin in Pennsylvania, the state has to address whether the activity poses an unacceptable risk of water contamination. Delaware Riverkeepers — in coordination with organizations like the Sierra Club and Lancaster Against Pipelines and along with a Luzerne County property owner — opposed the grant of the water quality certification in this case, arguing it was handed out arbitrarily.
In addition to claiming there was not enough of an opportunity for the public to weigh in on Atlantic Sunrise, the petitioners argued the state DEP could not have satisfied its constitutional duty to safeguard Pennsylvania’s ecosystem when it granted the certification before collecting the environmental impact data on which the related building permits are based.
They claimed the DEP should not have issued the certification immediately based on Transco’s promise that it would later obtain the permits it needs to build the pipeline expansion.
But in the court’s opinion, Third Circuit Judge Thomas Hardiman said that argument failed because no construction can begin without the right permits, so the activists will be given the opportunity to object during the public comment phase of the permit process.
“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,” Judge Hardiman said. “Petitioners will suffer no harm from Pa. DEP’s decision to provide notice of those permits at the time it actually considers them.”
Maya van Rossum, environmentalist author and head of the Delaware Riverkeeper Network, had a strong reaction to the Third Circuit’s ruling.
“Third Circuit judges twisted themselves into pretzels to find ways to deny the rights of the people of Pennsylvania to challenge the lawfulness of a pipeline project and instead to advance the pipeline despite the fact that neither the public nor the DEP have an understanding of the full array of harms that will be inflicted,” Ms. van Rossum said.
“With this ruling, the court is taking from people their ability to challenge a pipeline project at a time that could make a meaningful difference and instead greasing the wheels for all future approvals needed from the state,” she continued.
“The court is also creating the possibility that if in fact we were victorious in defeating future permitting for the project, that the people of Pennsylvania will have already lost their property rights via eminent domain to a project that might never be built.”
State DEP lawyer Alexandra C. Chiaruttini did not return a call seeking comment.
Christopher Stockton, a spokesman for Transco, praised the court’s decision that it had jurisdiction to hear the case, something the environmentalists argued against.
“We are pleased with the court’s decision because it recognizes the exclusive jurisdiction of the Federal Circuit Courts of Appeals over agency approvals associated with interstate natural gas projects, in addition to upholding the framework used by the Pennsylvania Department of Environmental Protection to ensure that appropriate environmental protections are in place for the Atlantic Sunrise project,” Mr. Stockton said.