Pennsylvania Environmental Hearing Board Tells Third Circuit, “Don’t Tread on Me”
The Pennsylvania Environmental Hearing Board (the “Board”) recently stirred up some controversy. Last month, in Lancaster Against Pipelines v. DEP, EHB Docket No. 2016-075-L (May 10, 2017), the Board held that it has jurisdiction to review actions taken by the Pennsylvania Department of Environmental Protection (“PADEP”) involving interstate natural gas pipelines, despite a 2013 decision issued by the U.S. District Court for the Middle District of Pennsylvania that held precisely the opposite.
The Natural Gas Act, 15 U.S.C. §§ 717-717z, gives the Federal Energy Regulatory Commission (“FERC”) the primary role in regulating interstate natural gas pipelines. States retain certain rights, one of which is to issue Water Quality Certifications under Section 401 of the Clean Water Act, 33 U.S.C. § 1341(a) (“401 certification”), in which the state certifies that the construction, operation, and maintenance of a natural gas facility, such a pipeline, complies with the state’s water quality standards, provided that the facility operator obtains and complies with certain state permits.