On March 14, the federal Third Circuit Court of Appeals ruled Adelphia Gateway natural gas pipeline company was not entitled to a different outcome in Federal Court after receiving an adverse judgment in the Commonwealth Court of Pennsylvania in Cole et al v. Department of Environmental Protection in 2021.

The case resolved in the affirmative the question of whether state permits issued for operations which are part of interstate natural gas pipelines can be appealed at the Pennsylvania Environmental Hearing Board (EHB).

Neighbors have been seeking to present their case to the Board since 2019 that the natural gas compressor station’s technologies and processes are insufficiently protective of the environment and public health.

Neighbors Clifford Cole, Pamela West, Brian Weirback, Kathy Weirback, Todd Shelly, and Christine Shelly oppose the DEP permit, an air quality Plan Approval, which would allow Adelphia to emit hundreds of tons of air pollution into the community.

The neighbors also object to the droning industrial noise the station projects onto their quiet and peaceful properties.

Adelphia Gateway has maintained from the outset that the federal Natural Gas Act allows only the federal Circuit Courts of Appeals to hear a challenge to a state permit issued to an interstate natural gas pipeline-related pollution source.

In 2021, the Pennsylvania Commonwealth Court rejected that argument, stating that the EHB could hear the Neighbors’ appeal.

In 2022, the Federal District Court for the Middle District of Pennsylvania also rejected Adelphia’s Complaint and request for an Injunction to prevent the Commonwealth Court’s ruling allowing the EHB case to proceed.

Adelphia appealed that decision to the Third Circuit, resulting in today’s outcome.

The Third Circuit’s decision recognized the state court’s authority to rule on a question involving interpretation of federal law (whether the Natural Gas Act preempts a state administrative proceeding), accords respect to the state court decision, and further held that federal court could not subsequently take up and rule on the same question involving the same parties.

As the Court stated: “When a party has its day in state court and loses, it is not permitted a do-over in federal court. Were it otherwise, state court decisions would lack finality, litigation expenses would balloon, and lower federal courts would sit as quasicourts of appeals over state courts.” (Opinion, p. 16.)

This outcome is particularly noteworthy given that the Third Circuit is the very court the Natural Gas Act would ostensibly place sole jurisdiction for Court appeals of state permits. It has been further established now that this preemption of review does not apply to state administrative proceedings, such as those before the EHB.

The case is of considerable legal interest because of the broad implications for the application of state law in Pennsylvania, and potentially neighboring states as well, in the context of a critical environmental struggle--the ongoing development of Marcellus Shale natural gas fields in Northeast and Southwest portions of the state and the pipeline networks necessary to support that exploitation.

“The Third Circuit today made it clear—appeals to the EHB in PA are not preempted by the federal Natural Gas Act. This is a major win for the people of Pennsylvania resisting the intrusion of gas industry polluters in their communities,” said Michael D. Fiorentino, attorney for the Neighbors. “Citizens contending with natural gas pipeline facilities setting up in their communities need the option for a robust, fact-finding appeal of DEP permits that are available only before the Environmental Hearing Board.”

“That a few citizens could continue to win in state and federal Courts against the massive gas industry is astounding,” said Pamela West, one of the neighbor-parties to the appeals. “We will continue to strive to protect our families, the nature we are part of, our homes, and the quality of our lives.”

“We shouldn’t give up the fight against big corporations when it comes to our family's health, safety and the future of our environment. If we don’t stand up, who will? We will continue to do what we can to make a difference.” ~Brian and Kathy Weirback, neighbor-parties to the appeals.

In the near future, it is expected that the PA Supreme Court, at which Adelpia had lodged yet another appeal, will determine whether to also uphold the Commonwealth Court decision and allow the EHB to re-establish a procedural timeline for the Neighbors’ challenge to the air quality plan approval.

The decision can be found on the Third Circuit docket for Adelphia Gateway, LLC v. Pennsylvania Environmental Hearing Board, et al, No. 21-3356.

(Photo: Quakertown Compressor Station Site, Courier Times.)

PA Oil & Gas Public Notice Dashboards:

-- Pennsylvania Oil & Gas Weekly Compliance Dashboard - March 11 to 17; Fracking 2 Wells Interfered With Another Shale Gas Well In Westmoreland County  [PaEN]

-- PA Oil & Gas Industrial Facilities: Permit Notices/Opportunities To Comment - March 18 [PaEN]

-- DEP Posts 62 Pages Of Permit-Related Notices In March 18 PA Bulletin  [PaEN]

PA Oil & Gas Compliance Reports

-- Feature: 60 Years Of Fracking, 20 Years Of Shale Gas: Pennsylvania’s Oil & Gas Industrial Infrastructure Is Hiding In Plain Sight [PaEN]

-- Conventional Oil & Gas Well Owners Failed To File Annual Production/Waste Generation Reports For 61,655 Wells; Attorney General Continues Investigation Of Road Dumping Wastewater  [PaEN]

-- DEP Issued 754 Notices Of Violation For Defective Oil & Gas Well Casing, Cementing, The Fundamental Protection Needed To Prevent Gas Migration, Groundwater & Air Contamination, Explosions  [PaEN]

-- DEP Report Finds: Conventional Oil & Gas Drillers Routinely Abandon Wells; Fail To Report How Millions Of Gallons Of Waste Is Disposed; And Non-Compliance Is An ‘Acceptable Norm’  [PaEN]

-- DEP 2021 Oil & Gas Program Annual Report Shows Conventional Oil & Gas Operators Received A Record 610 Notices Of Violation For Abandoning Wells Without Plugging Them  [PaEN]

-- PA Oil & Gas Industry Has Record Year: Cost, Criminal Convictions Up; $3.1 Million In Penalties Collected; Record Number Of Violations Issued; Major Compliance Issues Uncovered; Evidence Of Health Impacts Mounts  [PaEN]

Related Articles This Week:

-- PA Capital-Star Guest Essay: Why Your Electric/Natural Gas Utility Bill Has Gone Up And What You Can Do About It - By Patrick Cicero, Consumer Advocate Of PA, Terrance Fitzpatrick, Energy Assn. Of PA [Natural Gas Prices Tripled]

-- Wall Street Journal: Why Natural Gas Bills Are Going Crazy, With No End In Sight

-- Marcellus Drilling News: New Fortress Energy Reapplying For Wyalusing LNG Natural Gas Plant Permits In Bradford County  [PaEN]

-- U.S. DOT Misses Deadline To Suspend Rule Allowing Shipping LNG Natural Gas By Rail, Including A Proposal In PA  [PaEN]

-- Federal Court Rules Challenge To DEP Air Quality Permit For Adelphia Natural Gas Pipeline' Quakertown Compressor Station May Go Forward  [PaEN]

-- Environmental Groups Appeal DEP Permits For Transco Regional Energy Access Expansion Natural Gas Pipeline In Luzerne, Monroe Counties  [PaEN]

-- DEP To Submit Letter Of Intent To EPA As Early As This Week For Primacy To Regulate Underground Injection Wells  [PaEN]

-- PA Business Groups Urge EPA To Speed Up Approval Of State Primacy Applications For Injection Well Regulation [PaEN]

-- Equitrans/DEP In Discussions To Resolve EHB Appeal Of DEP’s Order To Fix Cambria County Underground Natural Gas Storage Area Conventional Access Wells  [PaEN]

-- Shell Petrochemical Plant Had 3-Hour Emergency Flaring Event To Burn Off Flammable Gases In Beaver County  [PaEN]

-- Commonwealth Court Rules PUC Is ‘Obligated’ To Conduct An Environmental Review Of Projects By The Environmental Rights Amendment In Case Involving A PECO Natural Gas Pumping Station In Delaware County  [PaEN]

-- Environmental Health Project: 75% Of Hazardous Waste Accepted At MAX Environmental Yukon Facility In Westmoreland County Comes From Shale Gas Industry; Sludge Proposed To Be Delisted As Hazardous Waste  [PaEN]

-- Marcellus Drilling News/Wellsboro Gazette: Pine Creek Headwaters Protection Group Objects To Location Of Mt. Nessmuk Shale Gas Drill Pad In Tioga State Forest  [PaEN]

-- Susquehanna River Basin Commission Approves 6 Natural Gas Drilling Water Withdrawal Renewals For 7.1 Million Gallons/Day  [PaEN]

-- Environmental Defense Fund, Clean Air Council, Environmental Health Project Sponsor Ad Campaign To Finalize Strong EPA Oil & Gas Methane Emission Limits To Protect PA's Health & Climate  [PaEN]

-- March 29 Southeastern PA Town Hall Meeting In Chester County To Focus On Health, Environmental Impacts Of Fossil Fuels  [PaEN]

-- Pennsylvania's Clean Energy Economy Grew To Over 92,700 Jobs Since COVID Economic Crisis  [PaEN]

[Posted: March 14, 2023]

3/20/2023