West Rockhill Twp. v. DEP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA West Rockhill Township, :

Petitioner : :

v. : No. 1595 C.D. 2019

: Argued: September 16, 2020 Department of Environmental :

Protection, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1

HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ELLEN CEISLER, Judge HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED MEMORANDUM OPINION BY JUDGE BROBSON FILED: June 15, 2021

Petitioner West Rockhill Township (Township) petitions for review of the September 25, 2019 Order of the Pennsylvania Environmental Hearing Board (EHB). In that order, the EHB, on a motion by Intervenor Adelphia Gateway, LLC (Adelphia), dismissed for lack of subject matter jurisdiction the Township’s appeal of an April 19, 2019 plan approval by the Pennsylvania Department of Environmental Protection (DEP) of what the parties refer to as the Quakertown Compressor Station. At issue in this appeal is whether Section 19(d)(1) of the federal Natural Gas Act, as amended in 2005, 15 U.S.C. § 717r(d)(1),2 divests the EHB of its subject matter jurisdiction to hear the Township’s appeal from DEP’s plan approval.

The EHB, relying on a series of United States Court of Appeals for the Third Circuit decisions applying Section 717r(d)(1), concluded that original and exclusive jurisdiction over the Township’s administrative appeal to the EHB from the DEP plan approval lies in the Third Circuit. For the reasons set forth in our opinion in a companion case, Cole v. Pennsylvania Department of Environmental Protection, ___ A.3d ___ (Pa. Cmwlth., No. 1577 C.D. 2019, filed June 15, 2021), the EHB erred in dismissing the Township’s administrative appeal for lack of subject matter jurisdiction. We, therefore, will reverse the EHB’s order and remand the matter to the EHB to hear the Township’s administrative appeal.3

P. KEVIN BROBSON, Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA

West Rockhill Township, :

Petitioner : :

v. : No. 1595 C.D. 2019

:

Department of Environmental :

Protection, :

Respondent :

ORDER

AND NOW, this 15th day of June, 2021, the September 25, 2019 Order of the Pennsylvania Environmental Hearing Board (EHB) (EHB Docket No. 2019-039-L) is REVERSED. This matter is REMANDED to the EHB for further proceedings consistent with the accompanying opinion.

Intervenor Adelphia Gateway, LLC’s Application for Relief to File a Post-Submission Letter is DENIED.

Jurisdiction relinquished.

P. KEVIN BROBSON, Judge IN THE COMMONWEALTH COURT OF PENNSYLVANIA

West Rockhill Township, :

Petitioner : :

v. : No. 1595 C.D. 2019

: Argued: September 16, 2020 Department of Environmental :

Protection, :

Respondent :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge HONORABLE P. KEVIN BROBSON, Judge HONORABLE ANNE E. COVEY, Judge HONORABLE MICHAEL H. WOJCIK, Judge HONORABLE ELLEN CEISLER, Judge HONORABLE J. ANDREW CROMPTON, Judge

OPINION NOT REPORTED CONCURRING OPINION BY JUDGE CROMPTON FILED: June 15, 2021

While I do not fundamentally disagree with the majority in reversing the decision of the Environmental Hearing Board (EHB) and remanding this matter to the EHB, I am of the opinion that the issue now before this Court, namely the grant or denial of an environmental permit related to a natural gas pipeline, rests on appeal with the United States Court of Appeals for the Third Circuit, per the Natural Gas Act,1 pending further clarification by the Third Circuit.

For the reasons set out in my concurring opinion in a companion case, Cole v. Pennsylvania Department of Environmental Protection, ___ A.3d ___ (Pa. Cmwlth., No. 1577 C.D. 2019, filed June 15, 2021), I concur.

______________________________ J. ANDREW CROMPTON, Judge

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