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Power & Pipes

FERC, CFTC, and State Energy Law Developments

The US Supreme Court has denied a petition for certiorari filed by the Delaware Riverkeeper Network, which challenged a decision by the US Court of Appeals for the Third Circuit concerning Pennsylvania’s water quality certification for Transcontinental Gas Pipe Line Company LLC’s (Transco’s) Atlantic Sunrise Project. The project expands Transco’s interstate pipeline network in Pennsylvania and on the East Coast. The Supreme Court’s April 29 denial comes as another success for the project, which has been defending against several challenges, first at the agency level and now at the appellate level, since Atlantic Sunrise first filed its FERC application to construct and operate the expansion facilities in March 2015.

Last year, on September 4,[1] the Third Circuit rejected four challenges on the merits[2] concerning the Pennsylvania Department of Environmental Protection (PADEP) certification under the Clean Water Act (CWA). The challenges were raised by Delaware Riverkeeper as well as other environmental protection organizations and one individual. Transco applied for the water quality certification so that FERC could certify Atlantic Sunrise for construction and operation. The Third Circuit found the following:

  • It rejected the petitioners’ claim that PADEP failed to provide the public proper notice under the CWA, noting that PADEP published notice of Transco’s water quality certification application in the Pennsylvania Bulletin (Pennsylvania’s version of the Federal Register) and provided a 30-day comment period for public participation in the proceeding. The Third Circuit found that no additional notice was required.
  • Second, the Third Circuit rejected the petitioners’ assertion that it was arbitrary and capricious to issue an immediately effective water quality certification that was also conditioned on Transco obtaining additional permits. It found that PADEP’s process was consistent with the Third Circuit’s prior decisions, and no harm would result from allowing PADEP to provide notice of the additional permits at the time it actually considers them.
  • Third, the court found that the petitioners raised eminent domain challenges in the wrong forum because those claims arose under the Natural Gas Act, and thus should have been raised in FERC’s certification proceeding for Atlantic Sunrise.
  • Finally, the Third Circuit found that the petitioners were unable to show that they were harmed by PADEP’s alleged violation of its obligation to safeguard the commonwealth’s natural resources under the Pennsylvania Constitution. This is primarily because the certification was itself conditioned on Transco obtaining additional permits, and thus no harm had yet materialized.

The Third Circuit’s decision, in conjunction with the Supreme Court’s denial, effectively strengthens a state’s discretionary permitting authority under statutes like the CWA. However, other federal court decisions cut in the other direction. For example, the US Court of Appeals for the DC Circuit recently refused to allow certain states to effectively lengthen the federal decision deadline for issuing CWA permits concerning a hydropower project in the West Coast.[3] Such decisions continue to define the boundaries under which states must operate when permitting projects pursuant to federal statutes, and should be closely monitored by those interested in pipeline construction and development issues.


[1] See Del. Riverkeeper Network v. Sec’y of PADEP, Case No. 16-2211 (3d Cir. Sept. 4, 2018).

[2] The Third Circuit also determined that it had jurisdiction to hear the appeal from the petitioners. Id. at 8-18.

[3] Hoopa Valley Tribe v. FERC, Case No. 14-1271 (D.C. Cir. Jan. 25, 2019).