That federal agencies enjoy numerous advantages in defending against legal challenges to their administrative decision-making is a fact of administrative law.  But these advantages extend beyond the favorable standards of review that typically apply to their decisions.  An agency can, for example, sometimes short circuit what might be a meritorious appeal by seeking a “voluntary remand” from the Court, thereby potentially affording itself more control over any reconsideration while avoiding creating unfavorable precedent.  As a reminder of this, the Sixth Circuit recently held that EPA was entitled to reconsider one of its Clean Air Act (CAA) rulemakings, namely its decision to remove the air nuisance rule (ANR), a broad standard that generally prohibited nuisance emissions that endangered the “health, safety, or welfare of the public,” from Ohio’s State Implementation Plan (SIP), without the Court vacating EPA’s underlying decision.  Sierra Club et al. v. EPA, No. 21-3057, 2023 WL 1873168, at * 1 (6th Cir. Feb. 10, 2023).    Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Citizen Suit, Clean Air Act, Sixth Circuit, Standing

When a public interest environmental rights group or other party appeals a decision by the New Jersey Department of Environmental Protection affecting a planned project, it should name the permittee as a party on the Notice of Appeal and serve them accordingly. On April 11, 2022, the Supreme Court of New Jersey remanded a case back to the Appellate Division and held that an appellant natural gas company should have been named as a party in the Notice of Appeal and served. See In re Proposed Constr. of Compressor Station (CS327), No. 086428 (Apr. 11, 2022). Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Intervention, Natural Gas, New Jersey, Oil and Gas, Permits, Pipelines, Procedure, Standing

This Blog Post was authored by Timothy Johnson, a summer associate.

Earlier this month, the Commonwealth Court of Pennsylvania concluded that the Pennsylvania Environmental Hearing Board (EHB) erred in its dismissal of the petitioners’ appeal of the approval of a compressor station plan by the Pennsylvania Department of Environmental Protection (PADEP) for lack of subject matter jurisdiction. Cole v. Pennsylvania Dep't of Env't Prot., No. 1577 C.D. 2019, 2021 WL 2420667 (Pa. Cmwlth. 2021). In doing so, the Court held that Section 717r(d)(1) of the federal Natural Gas Act, which provides that federal courts have exclusive jurisdiction over “civil actions” for review of an approval or denial of a permit or approval required by federal law, does not preclude state administrative agency review of state permitting decisions. Accordingly, the EHB’s review of the matter was not preempted. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Air, Citizen Suit, Clean Air Act, EHB, Federal Energy Regulatory Commission, FERC, Hearing Board, Natural Gas Act, Oil and Gas, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Preemption, Subject Matter Jurisdiction

On February 21, 2020, the Pennsylvania Commonwealth Court dismissed a claim brought by a group of municipalities alleging that a Pennsylvania Public Utility Commission (PUC) regulation governing the siting of gas meters failed to sufficiently protect historic resources under Article I, Section 27 of the Pennsylvania Constitution, also known as the Environmental Rights Amendment (ERA). See City of Lancaster, et al. v. Pa. Pub. Util. Comm’n, No. 251 MD 2019 (Pa. Cmwlth. Feb. 21, 2020). Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Energy, Environmental Rights Amendment, Historic Resources, Natural Gas, Pennsylvania, Preemption, Public Utilities Commission, Real Estate, Residential, Utilities

The adage “you can’t put the toothpaste back in the tube” has manifested itself in two recent federal court decisions. Under separate theories, both the Second Circuit and the District Court of the District of Columbia have issued decisions that highlight the difficulty environmental groups faced in challenging energy infrastructure projects that have been completed during the course of litigation. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Procedures Act, Army Corps, Citizen Suit, D.C. Circuit, Energy, Marcellus Shale, NEPA, New York, NPDES, Oil and Gas, Pipelines, Second Circuit

This Post was authored by Andrew LeDonne, a MGKF summer associate. 

On June 11, 2019 the Commonwealth Court of Pennsylvania upheld a decision by the Pennsylvania Environmental Hearing Board (“EHB”) denying the Sierra Club’s application for fees and costs under section 307(b) of the Clean Streams Law. Sierra Club v. Dep't of Envtl. Prot., 2019 WL 2426771 (Pa. Commw. Ct. 2019).

On September 1, 2016, the EHB consolidated two third-party appeals filed by the Sierra Club to challenge an National Pollution Discharge Elimination System (“NPDES) permit and a Water Quality Management (“WQM”) permit issued by the Pennsylvania Department of Environmental Protection (“DEP”) to Lackawanna Energy Center, LLC (“LEC”). In April 2017, LEC redesigned its powerplant to reduce the amount of industrial wastewater generated by the facility such that the waste could be transported by truck off-site for treatment.  DEP issued a permit modification to LEC because, as a result of the changes to its planned facility, LEC no longer required either the WQM permit or the industrial wastewater discharge portion of its NPDES permit. In light of these changes, all parties moved to dismiss Sierra Club’s appeal. After the EHB dismissed the appeal, Sierra Club petitioned for attorneys’ fees and litigation costs from DEP under section 307(b) of the Clean Steams Law, which the EHB denied after holding an evidentiary hearing on the fee petition. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Streams Law, Commonwealth Court, Fees, Hearing Board, NPDES

In a matter of first impression in Delaware, the Delaware Superior Court recently held that the Department of Natural Resources and Environmental Control (“DNREC”) does not have authority under its cease and desist powers to mandate that an alleged violator take affirmative corrective action. See Del. v. McGinnis Auto & Mobile Home Salvage, LLC, K17A-09-001 JJC (Del. Super. Feb. 21, 2019). The court decided that when DNREC seeks to require a violator to take affirmative action, DNREC must obtain appropriate injunctive relief in Delaware’s Court of Chancery. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Delaware, Delaware Department of Natural Resources and Environmental Control, Enforcement, Waste

In the latest development in parallel cases captioned EQT Prod. Co. v. Department of Environmental Protection which have been moving through Pennsylvania state courts and the Environmental Hearing Board ("EHB") since early 2014, the Commonwealth Court of Pennsylvania affirmed the EHB’s assessment of penalties totaling $1,137,295.76 against the hydraulic fracturing company, EQT Production Company (“EQT”), for contamination to groundwater arising from a leaking wastewater impoundment. EQT Prod. Co. v. Dep’t of Envtl. Prot., No. 844 C.D. 2017, 2018 WL 4289310 (Pa. Commw. Ct. Sept. 10, 2018). Specifically, on September 10, 2018, the Commonwealth Court held that the EHB did not commit an error of law when it held that, under Clean Streams Law (“CSL”), penalties could be assessed for every day that contamination entered the groundwater from soils “through fundamental hydrologic principles,” even if the initial spill event had ceased and there was no direct evidence of daily transmission of contamination from soil to groundwater. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Case Update, Civil Penalties, Clean Streams Law, Contamination, Declaratory Relief, EHB, Groundwater, Hearing Board, Marcellus Shale, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Water

On September 4, 2018, the U.S. Court of Appeals for the Third Circuit determined that the Third Circuit, and not the Pennsylvania Environmental Hearing Board (“EHB”), has jurisdiction to review Water Quality Certifications issued by the Pennsylvania Department of Environmental Protection (“DEP”) for interstate natural gas projects governed by the Natural Gas Act. See Del. Riverkeeper Network, et al. v. Dep’t of Envtl. Prot., No. 16-221, 2018 WL 4201626 (3d Cir. Sept. 4, 2018). The Third Circuit also held that DEP does not violate Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) by issuing a Water Quality Certification that is conditioned on obtaining substantive permits. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Administrative Hearing, Clean Water Act, Condemnation, EHB, Eminent Domain, Energy, Environmental Rights Amendment, Federal Energy Regulatory Commission, Marcellus Shale, Natural Gas Act, Oil and Gas, Pennsylvania, Pennsylvania Department of Environmental Protection, Permits, Pipelines, Procedure, Subject Matter Jurisdiction, Third Circuit, Water

Since 2009, the Delaware River Basin Commission (“DRBC”) has effectively placed a moratorium on fracking activity within the Delaware River Basin (the “Basin”), premised on its assertion that any such activity is a “project” over which the DRBC has authority. But in Wayne Land & Mineral Group LLC v. Del. River Basin Comm’n, No. 17-1800, 2018 WL 3233784 (July 3, 2018), the Third Circuit, overturning a Pennsylvania District Court decision, has held that Delaware River Basin Compact’s (the “Compact”) definition of “project” is ambiguous, and that the DRBC may be without authority over fracking. The Third Circuit’s decision creates uncertainty regarding the scope of the DRBC’s authority and the future of fracking and other land use activities in the Basin. Read More »

Share | Email| Comments|  Topics: Administrative Appeals, Declaratory Relief, Delaware River Basin Commission, Drilling, Energy, Exploration, Groundwater, Marcellus Shale, Mineral Rights, Natural Gas, Oil and Gas, Pennsylvania, Procedure, Subject Matter Jurisdiction, Third Circuit, Water