PRECEDENTIAL

    UNITED STATES COURT OF APPEALS
         FOR THE THIRD CIRCUIT
              ____________

                  No. 23-2052
                 ____________

TRANSCONTINENTAL GAS PIPE LINE CO., LLC,
               Appellant
                       v.

PENNSYLVANIA ENVIRONMENTAL HEARING
 BOARD; STEVEN C. BECKMAN; BERNARD A.
  LABUSKES, JR.; MICHELLE A. COLEMAN;
      SARAH J. CLARK; CITIZENS FOR
  PENNSYLVANIA’S FUTURE; DELAWARE
  RIVERKEEPER NETWORK; MAYA K. VAN
                 ROSSUM
                 ____________

 On Appeal from the United States District Court
      for the Middle District of Pennsylvania
             (D.C. No. 1-23-cv-00463)
 District Judge: Honorable Christopher C. Conner
                  ____________

           Argued: October 19, 2023

  Before: CHAGARES, Chief Judge, PHIPPS and
            CHUNG, Circuit Judges.

              (Filed: July 8, 2024)
                 ____________
Andrew T. Bockis
SAUL EWING
2 N Second Street
Penn National Insurance Plaza, 7th Floor
Harrisburg, PA 17101

Patrick F. Nugent
Sean T. O’Neill
John F. Stoviak
SAUL EWING
1500 Market Street
Centre Square West, 38th Floor
Philadelphia, PA 19102

Elizabeth U. Witmer      [ARGUED]
SAUL EWING
1200 Liberty Ridge Drive
Suite 200
Wayne, PA 19087

   Counsel for Transcontinental Gas Pipe Line
   Co., LLC

Emma H. Bast
Jessica R. O’Neill
PENNFUTURE
1429 Walnut Street
Suite 701
Philadelphia, PA 19102

Kacy C. Manahan       [ARGUED]
DELAWARE RIVERKEEPER NETWORK
925 Canal Street
Suite 3701
Bristol, PA 19007

   Counsel for Citizens for Pennsylvania’s
   Future



                       2
Emma H. Bast
PENNFUTURE
1429 Walnut Street
Suite 701
Philadelphia, PA 19102

Kacy C. Manahan       [ARGUED]
DELAWARE RIVERKEEPER NETWORK
925 Canal Street
Suite 3701
Bristol, PA 19007

   Counsel for Delaware Riverkeeper Network

Kacy C. Manahan       [ARGUED]
DELAWARE RIVERKEEPER NETWORK
925 Canal Street
Suite 3701
Bristol, PA 19007

   Counsel for Maya K. van Rossum

Margaret O. Murphy   [ARGUED]
PENNSYLVANIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION
400 Market Street
P.O. Box 8469
Harrisburg, PA 17105

Curtis C. Sullivan
PENNSYLVANIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION
909 Elmerton Avenue
3rd Floor
Harrisburg, PA 17110

   Counsel for Intervenor Pennsylvania
   Department of Environmental Protection



                     3
                _______________________

                OPINION OF THE COURT
                _______________________

PHIPPS, Circuit Judge.

    To construct, extend, or abandon an interstate natural gas
pipeline requires permits from both federal and state agencies.
In this case, a pipeline company obtained all the permits
needed to abandon and replace part of its pipeline and to
expand its pipeline through new construction in Pennsylvania.
The company then began those endeavors. But within the time
permitted by state law, environmental advocates
administratively appealed the Pennsylvania state agency’s
issuance of three of the required permits to another state
agency, as allowed by state law.

    With those permits in jeopardy and the construction project
underway, the pipeline company initiated this action in the
District Court for declaratory and injunctive relief. It also
moved to preliminarily enjoin the administrative appeal. In
support of its motion, the pipeline company argued that the
Natural Gas Act preempts the state law allowing an
administrative appeal expressly and also impliedly through
field and obstacle preemption. The state agency that issued the
permits intervened and supported the pipeline company’s
motion. The District Court rejected the preemption arguments
and denied the pipeline company’s motion.

   In this timely appeal of that decision, the pipeline company
challenges that ruling. On de novo review, because none of the
theories of preemption advanced by the pipeline company or
the state agency apply here, we have affirmed the District
Court’s denial of the preliminary-injunction motion for the
reasons below.




                              4
              I. FACTUAL BACKGROUND AND
                   PROCEDURAL HISTORY
     Transcontinental Gas Pipe Line Company, LLC,
commonly referred to as ‘Transco,’ is a natural gas company
subject to the Natural Gas Act. See 15 U.S.C. § 717a(6)
(defining the term ‘natural-gas company’). Transco operates
natural gas transportation facilities spanning from offshore in
the Gulf of Mexico through several states, including
Pennsylvania and New Jersey, to the New York City
metropolitan area. In 2021, Transco sought to abandon some
of its outdated pipeline facilities and to expand others in
Pennsylvania and New Jersey. But under the Natural Gas Act,
before Transco could commence that project, it needed a
Certificate of Public Convenience and Necessity from the
Federal Energy Regulatory Commission. See id. § 717f(b)–
(c).

    On March 26, 2021, Transco applied for such a certificate.
After notice and an opportunity for public comment, FERC
issued the certificate through an order dated January 11, 2023.
See Transcontinental Gas Pipe Line Co., 

(2023). But FERC placed numerous conditions on that
certificate – as it may legally do. See generally 15 U.S.C.
§ 717f(e) (granting FERC the power to issue certificates and to
attach conditions to them when required by public convenience
and necessity).

    One of those conditions required Transco to provide
documentation to FERC that it had “received all applicable
authorizations required under federal law (or evidence of
waiver thereof)” before commencing the project.
Transcontinental, 

, at App. B, P 10. And a
federal law, the Clean Water Act, requires a Water Quality
Certification from any state in which the federally licensed
activity may result in the origination of a discharge of
pollutants into the navigable waters of the United States. See

(a)(1). On March 31, 2021, within a week of
applying for a Certificate of Public Convenience and Necessity



                              5
from FERC, Transco applied to the Pennsylvania Department
of Environmental Protection for a Water Quality Certification
for the pipeline project in Pennsylvania.
    Under its Clean Water Act powers, PADEP, as the agency
is commonly abbreviated, can impose conditions on a Water
Quality Certification. See 

 § 1341(d). And when PADEP
issued the Water Quality Certification for the project a year
later, on March 30, 2022, it did so subject to the condition that
Transco receive three additional permits from PADEP: an
Erosion and Sediment Control Permit, see 

,
and two Water Obstruction and Encroachment Permits, see 

§ 105. Thus, those additional permits, referred to herein as the
‘Sub-Permits,’ operated as sub-conditions on the Certificate of
Public Convenience and Necessity for the project. See
15 U.S.C. § 717b(d)(3) (allowing state regulation of interstate
natural gas pipelines under the Clean Water Act);
Transcontinental, 

, at App. B, P 13 (“All
conditions attached to the water quality certificate issued by
the Pennsylvania Department of Environmental Protection . . .
constitute mandatory conditions of the Certificate Order.”).

   Transco applied for the Sub-Permits, and on February 3,
2023, PADEP issued them. About a month after receiving the
Sub-Permits, Transco began its pipeline project.

   A Pennsylvania statute, however, allows any person
adversely affected by a PADEP permitting decision to
administratively appeal that ruling to a separate state agency,
the Environmental Hearing Board, commonly abbreviated as
the ‘EHB.’ See 35 Pa. Stat. Ann. § 7514(c). Three
environmental advocates – Citizens for Pennsylvania’s Future;
the Delaware Riverkeeper Network; and the Delaware
Riverkeeper, Maya K. van Rossum – claimed that the pipeline
project would degrade certain streams, tributaries, and
wetlands in violation of Pennsylvania law in six respects, and
they timely filed a joint administrative appeal with the EHB
challenging PADEP’s issuance of the Sub-Permits. See 

Stat. Ann. § 7514(g) (allowing the EHB to make rules for
proceedings); 

(a)(2)(i)–(ii) (requiring
aggrieved persons to file an appeal with the EHB within thirty
days from the earlier of publication in Pennsylvania Bulletin or
actual notice of PADEP’s action). That administrative appeal
to the EHB did not automatically stay or enjoin the Sub-
Permits, nor did it otherwise prevent Transco from undertaking
construction on its pipeline expansion project. See 35 Pa. Stat.
Ann. § 7514(d)(1) (“No appeal shall act as an automatic
supersedeas.”); see also Del. Riverkeeper Network v. Sec’y Pa.
Dep’t of Env’t Prot. (Riverkeeper III), 

 (3d Cir.
2018) (“[A]n appeal to the EHB does not prevent PADEP’s
decision from taking immediate legal effect.”).

    Nonetheless, while that administrative appeal was pending
before the EHB, Transco initiated this action in the District
Court against the environmental advocates and the members of
the EHB to enjoin those proceedings. See Armstrong v.
Exceptional Child Ctr., Inc., 

, 326–27 (2015)
(articulating the long-held legal principle “that federal courts
may in some circumstances grant injunctive relief against state
officers who are violating, or planning to violate, federal law”).
Transco also sought a judgment declaring that, under the
Natural Gas Act, this Court was the sole forum to dispute
PADEP’s issuance of the Sub-Permits. See 

(creating the declaratory judgment as a remedy and permitting
a court to grant such relief in an “actual controversy within its
jurisdiction”).

     Eight days later, Transco moved for a preliminary
injunction to prevent the administrative appeal to the EHB
from going forward. See Fed. R. Civ. P. 65(a). The three
environmental advocates opposed that motion, but the EHB
members did not make any filing in response to the motion.
PADEP moved to intervene, and after that motion was granted,
it filed a brief in support of Transco’s position.




                                7
    In exercising federal-question jurisdiction over the case,1
the District Court denied Transco’s motion. It determined that
Transco did not establish either a likelihood of success on the
merits or irreparable harm and therefore did not qualify for
preliminary injunctive relief.

    Through a timely notice of appeal, Transco invoked this
Court’s appellate jurisdiction to dispute the denial of its motion
for a preliminary injunction. See 

(a)(1); Fed.
R. App. P. 4(a)(1)(A). After expedited briefing and oral
argument, along with a notice from the EHB members of their
election not to participate in the appeal, this Court entered a
judgment affirming the District Court’s order denying
preliminary injunctive relief. This opinion provides the
reasons for that judgment.
                        II. DISCUSSION
    A preliminary injunction is an “extraordinary and drastic”
subspecies of injunctive relief that is issued before resolution
on the merits and that applies during the pendency of litigation.
Munaf v. Geren, 

 (2008) (quoting 11A
Charles Alan Wright, Arthur R. Miller & Mary Kay Kane
Federal Practice and Procedure § 2948, at 129 (2d ed. 1995));
see also Santana Prods., Inc. v. Compression Polymers, Inc.,

 (3d Cir. 1993) (explaining that ‘injunctive
relief’ refers to the use of a court’s equitable powers to issue
“[o]rders that are directed to a party, enforceable by contempt,
and designed to accord or protect some or all of the substantive
relief sought by a complaint in more than a temporary fashion”

1
  See 

; Shaw v. Delta Air Lines, Inc., 

, 96 n.14 (1983) (“A plaintiff who seeks injunctive relief
from state regulation, on the ground that such regulation is pre-
empted by a federal statute which, by virtue of the Supremacy
Clause of the Constitution, must prevail, thus presents a federal
question which the federal courts have jurisdiction under

 to resolve.”).



                                8
(cleaned up)). Like all equitable relief, a preliminary
injunction is “never awarded as of right,” but rather it involves
the exercise of “equitable discretion.” Winter v. Nat. Res. Def.
Council, Inc., 

 (2008). This Court recognizes
four considerations that bear on the exercise of that discretion:

       1. A reasonable probability of success on the
          merits of the claim for which injunctive
          relief is sought;

       2. An irreparable harm in the absence of
          preliminary injunctive relief;
       3. A balancing of the equities associated with
          the possibilities of harms to other interested
          persons resulting from the grant or denial of
          injunctive relief; and

       4. An assessment of the public interest.

See Reilly v. City of Harrisburg, 

 (3d Cir.
2017); Amoco Prod. Co. v. Village of Gambell, 

,
546 n.12 (1987) (“The standard for a preliminary injunction is
essentially the same as for a permanent injunction with the
exception that the plaintiff must show a likelihood of success
on the merits rather than actual success.”); see also Winter,

; Kim v. Hanlon, 

, 154–55 (3d Cir.
2024).

    The first two considerations – a reasonable probability of
ultimate success and some harm that cannot be remedied in
either law or equity following resolution on the merits –
operate both as essential elements and as factors that guide the
exercise of equitable discretion. They are elements because the
failure of the moving party to make either of those threshold
showings is fatal to the issuance of a preliminary injunction.
See Reilly, 

 (referring to the first two
considerations as “gateway factors”); In re Arthur Treacher’s



                               9
Franchisee Litig., 

 (3d Cir. 1982) (“Unless
both a reasonable probability of eventual success and
irreparable harm are demonstrated, preliminary injunctive
relief is not to be granted.” (citation and quotation omitted)).
They are factors because once the moving party makes the two
threshold showings, then the relative weights of those
considerations are evaluated along with the other two factors –
the balance of equities and the public interest. See Reilly,

 (“If these gateway factors are met, a court then
considers the remaining two factors and determines in its sound
discretion if all four factors, taken together, balance in favor of
granting the requested preliminary relief.”); see also Winter,

 (“[T]he balance of equities and consideration of
the public interest . . . are pertinent in assessing the propriety
of any injunctive relief, preliminary or permanent.”); Siemens
USA Holdings Inc. v. Geisenberger, 

, 408 (3d Cir.
2021).

    The dual function of the first two considerations has
practical consequences as well. A near certain likelihood of
success on the merits or a particularly severe irreparable harm
will influence the exercise of equitable discretion more than
minimal qualifying showings for those considerations.
Conversely, if there is an “insuperable” barrier to the plaintiff’s
ability to succeed on the merits or an absence of an irreparable
harm, then an analysis of the remaining considerations is
unnecessary. Munaf, 

 (quotation omitted); see
also Amalgamated Transit Union Loc. 85 v. Port Auth. of
Allegheny Cnty., 

 (3d Cir. 2022) (explaining
that the movant must satisfy the threshold prerequisites). Even
more, an insuperable barrier to a plaintiff’s success on the
merits allows the reviewing court, in the exercise of its
equitable discretion, to deny relief on the underlying claim.
See Munaf, 

 (“Review of a preliminary
injunction ‘is not confined to the act of granting the
injunctio[n], but extends . . . to determining whether there is
any insuperable objection, in . . . jurisdiction or merits, to the
maintenance of [the] bill’” (first and fourth alteration in



                                10
original) (quoting City & County of Denver v. N.Y. Tr. Co.,

 (1913))); see also 

 (explaining that in
reviewing the grant or denial of a preliminary injunction, an
appellate court’s extension of review to the merits is “most
appropriate if the injunction rests on a question of law and it is
plain that the plaintiff cannot prevail”).
    Here, Transco’s motion and its entire case are premised on
preemption. It asserts that the Pennsylvania statute allowing
an administrative appeal to the EHB, see 35 Pa. Stat. Ann.
§ 7514(c), is displaced by the Natural Gas Act through express
preemption and two forms of implied preemption: field
preemption and obstacle preemption. See generally Arizona v.
United States, 

, 398–400 (2012) (explaining that
each form of preemption is rooted in the Supremacy Clause,
U.S. Const. art. VI, cl. 2). As a matter of law, however, none
of those methods of preemption apply here, and so the District
Court correctly denied Transco’s motion for a preliminary
injunction.

   A. The Natural Gas Act Does Not Expressly
      Preempt Administrative Appeals to the EHB.
    Express preemption requires an explicit statement of
federal law that announces and defines the scope of displaced
state regulation. See Pac. Gas & Elec. Co. v. State Energy Res.
Conservation & Dev. Comm’n, 

 (1983) (“It
is well-established that within Constitutional limits Congress
may preempt state authority by so stating in express terms.”);
Farina v. Nokia Inc., 

 (3d Cir. 2010)
(“Express preemption applies where Congress, through a
statute’s express language, declares its intent to displace state
law.”).     The explicit statutory conferral of exclusive
jurisdiction to a federal court over a particular subject matter is
a form of express preemption because it withdraws any
concurrent jurisdiction that state courts may have over that
same subject matter. See Tafflin v. Levitt, 

(1990) (“Th[e] deeply rooted presumption in favor of
concurrent state court jurisdiction is, of course, rebutted if



                                11
Congress affirmatively ousts the state courts of jurisdiction
over a particular federal claim.”).

   Relevant here, a clause in the Natural Gas Act grants
federal appellate courts “original and exclusive jurisdiction
over any civil action” that challenges state administrative
agency action taken “pursuant to Federal law to issue,
condition, or deny any permit . . . required under Federal law.”
15 U.S.C. § 717r(d)(1). Transco argues that when a PADEP
permitting decision involves an interstate natural gas pipeline,
the original-and-exclusive-jurisdiction clause preempts the
operation of the Pennsylvania statute that allows for
administrative appeals to the EHB, see 35 Pa. Stat. Ann.
§ 7514(c).

    But “the presence of an express preemption provision does
not end the inquiry” because courts still must examine “the
scope of the preemption provision.” Farina, 

;
see also Medtronic, Inc. v. Lohr, 

 (1996)
(explaining that a court must “identify the domain expressly
pre-empted” by federal law (quoting Cipollone v. Liggett Grp.,
Inc., 

 (1992))); Roth v. Norfalco LLC,

 (3d Cir. 2011) (same). And here, the
Natural Gas Act’s conferral of original and exclusive
jurisdiction upon federal appellate courts is limited to “civil
action[s].” 15 U.S.C. § 717r(d)(1). Thus, for an administrative
appeal to the EHB to fall within the original-and-exclusive-
jurisdiction clause, it must be a ‘civil action.’ See Township of
Bordentown v. FERC, 

 (3d Cir. 2018) (“By
the plain language of the statute, the conferral of ‘original and
exclusive jurisdiction’ to the federal Courts of Appeals is
limited to ‘civil action[s] for the review of an order or action
of a Federal agency . . . or State administrative agency.’”
(quoting 15 U.S.C. § 717r(d)(1))); see generally CSX Transp.,
Inc. v. Easterwood, 

 (1993) (explaining that
the express preemption analysis “focus[es] on the plain
wording” of the federal law).




                               12
    This Court has already considered the meaning of the term
‘civil action’ as used in the original-and-exclusive-jurisdiction
clause. As explained in Township of Bordentown v. Federal
Energy Regulatory Commission, that term refers only to civil
court proceedings – not to matters before administrative
agencies:
       [A] “civil action” refers only to civil cases
       brought in courts of law or equity and does not
       refer to hearings or other quasi-judicial
       proceedings before administrative agencies.

903 F.3d at 267.

    But under the structure of Pennsylvania state government,
the EHB is not a court. By the terms of its organic statute, the
EHB is a “quasi-judicial agency,” 35 Pa. Stat. Ann. § 7513(a)
(emphasis added), consisting of members who are “full-time
administrative law judges,” id. § 7513(b) (emphasis added).
And while the EHB “has the power and duty to hold hearings
and issue adjudications,” id. § 7514(a), it is not included as one
of the nine courts comprising Pennsylvania’s Unified Judicial
System, see 

. Moreover, the
Commonwealth Court concluded that, for purposes of
Pennsylvania law, “[p]roceedings before the EHB, an
administrative agency independent of [PA]DEP, are
administrative proceedings, not civil actions.” Cole v. Pa.
Dep’t of Env’t Prot., 

, 815 (Pa. Commw. Ct.
2021).

    For further perspective, there will always be significant
similarities between administrative adjudications and court
proceedings. See Bordentown, 

 (explaining the
long-standing principle that “administrative hearings, even to
the extent that they in some ways mirror an adversarial trial, do
not constitute proceedings in courts of law or equity”). Indeed,
the EHB and state appellate courts may each affirm, modify,
vacate, set aside, or reverse a PADEP permitting decision, and



                               13
they may each remand the matter to PADEP.2 But the EHB
does not follow the “general rules governing practice,
procedure and the conduct” promulgated by the Pennsylvania
Supreme Court for use in Pennsylvania courts. Pa. Const.
art. V, § 10(c) (granting the Supreme Court of Pennsylvania
the power to adopt rules for practice before Pennsylvania
courts); 

.1–.201 (setting rules for
proceedings before the EHB). Instead, the EHB’s hearing and
adjudicative powers are subject to Pennsylvania’s
Administrative Agency Law, which applies “to all
Commonwealth agencies,” 

(a); see
35 Pa. Stat. Ann. § 7514(a)–(b). See generally 

(a) (entitling 2 Pa. Cons. Stat. §§ 501–08, 551–55,
561–68, 581–88, 701–04, and 751–54 as the “Administrative
Agency Law”). And under Pennsylvania’s Administrative
Agency Law, the EHB is responsible for developing a record
after discovery through a trial-like process. See id. §§ 504–06
(providing for record development in administrative agencies);
Leatherwood, Inc. v. Commonwealth, Dep’t of Env’t Prot.,

 (Pa. Commw. Ct. 2003) (“When an appeal
is taken from [PA]DEP to the EHB, the EHB is required to
conduct a hearing de novo . . . [and] the EHB’s duty is to
determine if [PA]DEP’s action can be sustained or supported
by the evidence taken by the EHB.”).


2
  Compare Pequea Township v. Herr, 

, 686–87
(Pa. Commw. Ct. 1998) (explaining the EHB’s authority to
uphold, vacate, or modify the actions of PADEP and quoting
Warren Sand & Gravel Co. v. Dep’t of Env’t Res., 

 (Pa. Commw. Ct. 1975)), and City of Harrisburg v.
Commonwealth, Dep’t of Env’t Prot., 

, at
*49–50 (Pa. EHB June 28, 1996) (remanding matter to PADEP
with instructions to issue a Water Quality Certification), with

 (setting forth the review powers of
state appellate courts), and 

 (authorizing
judicial review of actions of Commonwealth agencies).



                               14
    Despite the EHB possessing the powers of an
administrative agency, Transco argues that the EHB qualifies
as a ‘court’ so that an administrative appeal to the EHB
constitutes a ‘civil action.’ Transco grounds its position in
three attributes of the relevant statutory framework: (i) the
EHB’s structural independence from PADEP; (ii) the EHB’s
authority to conduct discovery and to reach its own conclusions
on permits; and (iii) the right of an adversely affected person
to challenge PADEP permitting decisions directly in this Court
without first filing an administrative appeal to the EHB.

    To support its assertion that the EHB should be construed
as a court because of its structural independence from PADEP,
Transco relies on the Bordentown decision. That case rejected
preemption challenges to the administrative appeal process
under New Jersey law for Clean Water Act permitting
decisions for interstate natural gas pipelines. See Bordentown,
903 F.3d at 267–69. That process involves “internal
administrative review” under which the same agency that made
the initial decision also resolved the administrative appeal. 

. As Transco reads Bordentown, that decision’s rejection
of the preemption challenges rests on New Jersey’s use of an
internal administrative review process. And because, unlike
New Jersey’s administrative process, the EHB and PADEP are
separate agencies, Transco argues that the administrative
appeals to the external EHB are preempted.

    Transco misreads Bordentown. That decision’s rejection of
the preemption challenge was not contingent on New Jersey’s
internal administrative review process. Rather, after surveying
the caselaw and examining the original-and-exclusive-
jurisdiction clause, Bordentown explained that “[t]he only
plausible conclusion to draw from these cases and from the text
of the statute itself is that § 717r(d)(1) does not preempt state
administrative review of interstate pipeline permitting
decisions.” Id. at 269. So instead of assisting Transco’s
position, Bordentown relied on a broader principle to reject
preemption, viz., that administrative appeals of conditions or



                               15
sub-conditions on Certificates of Public Convenience and
Necessity imposed by state agencies are not preempted. See
id. Applying that principle to Pennsylvania’s administrative
review process for Clean Water Act permits needed for
interstate natural gas pipelines leads to the conclusion that the
Natural Gas Act does not preempt administrative appeals to the
EHB.

    But even if the Bordentown holding were entirely
contingent on the internal administrative appeal process used
in New Jersey, that would not compel preemption in this case.
That (incorrect) reading of Bordentown can be expressed as the
following logical construct: ‘if internal administrative appeal,
then no preemption.’ And Transco wants the inverse of that
statement to also be true: ‘if no internal administrative appeal,
then preemption.’ But the inverse of a true conditional
statement is not necessarily true. See Ruggero J. Aldisert,
Logic for Lawyers 163 (3d ed. 1997) (explaining that the
logical fallacy known as “denying the antecedent of a
conditional statement” occurs when the statement “‘if P then
Q’ is taken to imply ‘if not P, then not Q’”); see also Irving M.
Copi & Carl Cohen, Introduction to Logic 306, 357 (9th ed.
1994) (explaining the same).3 So Transco’s reading of
Bordentown does not logically compel the conclusion that the
Natural Gas Act preempts an administrative appeal from
PADEP to the EHB of a Clean Water Act permitting decision
regarding an interstate natural gas pipeline.

   Even still, Transco argues that the outcome of this case
must be different than in Bordentown. Transco points out that,
in addition to being an external administrative appellate
3
  By way of example, the true statement that ‘if a person is in
Pennsylvania, then that person is not in New Jersey’ has an
inverse of ‘if a person is not in Pennsylvania, then that person
is in New Jersey.’ And that inverse is not necessarily true; it
may be true, but it requires additional proof and does not follow
purely as a matter of logic.



                               16
agency, the EHB has the power to develop a record through
discovery and a hearing. Those powers, according to Transco,
make the EHB a court. But that neglects that the EHB is an
appellate body and that the development of a factual record in
an appellate court is extremely rare. See Zenith Radio Corp. v.
Hazeltine Rsch., Inc., 

 (1969) (explaining
that district courts are better positioned to “appraise and weigh
the evidence”); Fassett v. Delta Kappa Epsilon (New York),

 (3d Cir. 1986) (“The only proper function
of a court of appeals is to review the decision below on the
basis of the record that was before the district court.”).
Similarly, appellate courts typically do not have the ability to
substitute their discretion for that of an administrative agency.
See Fla. Power & Light Co. v. Lorion, 

(1985) (“If the record before the agency does not support the
agency action, if the agency has not considered all relevant
factors, or if the reviewing court simply cannot evaluate the
challenged agency action on the basis of the record before it,
the proper course, except in rare circumstances, is to remand to
the agency for additional investigation or explanation.”);
Kwalwasser v. Commonwealth, Dep’t of Env’t Res., 

 (Pa. Commw. Ct. 1990) (explaining a court should
not substitute its discretion for that of an agency in the
“absence of fraud, bad faith or a flagrant abuse of discretion”
(citations omitted)). By contrast, it is not uncommon on
administrative appeal for agencies to have the ability to create
a separate record or to substitute their discretion for the initial
agency adjudicator. See United States v. Arthrex, Inc.,

 (2021) (“[I]t certainly is the norm for principal
officers to have the capacity to review decisions made by
inferior adjudicative officers” (quotation omitted)); see also

(b) (providing that in an administrative appeal,
the agency “has all the powers which it would have in making
the initial decision except as it may limit the issues on notice




                                17
or by rule”).4 And unlike an appellate court, the EHB has those
powers. See Pequea Township v. Herr, 

, 686–87
(Pa. Commw. Ct. 1998) (explaining that if the EHB finds,
based on the record created before the EHB, that PADEP
abused its discretion, the EHB may substitute its discretion for
that of PADEP). Thus, contrary to Transco’s contention, the
EHB’s authority to develop a record and substitute its
discretion for PADEP’s makes it much more like an appellate
administrative body than an appellate court.

    Finally, Transco argues that because a PADEP licensing
decision involving a Water Quality Certification for an
interstate natural gas pipeline can be challenged in either this
Court directly, see Riverkeeper III, 903 F.3d at 74–75, or
through an administrative appeal to the EHB, see 35 Pa. Stat.
Ann. § 7514(c), the EHB must be a court. But as explained in
Bordentown, specifically in the context of the original-and-
exclusive-jurisdiction clause of the Natural Gas Act, “even
though a petitioner might have the right immediately to
commence a civil action in this Court, this does not necessarily
extinguish his right instead to seek redress via the available
administrative avenues before filing that civil action.”
903 F.3d at 271 n.25 (emphasis added). So although this Court
and the EHB both have appellate review powers over a PADEP
decision regarding conditions or sub-conditions for a
Certificate of Public Convenience and Necessity, the EHB
need not be understood as a court for purposes of the Natural



4
  See also, e.g., 

 (permitting the Securities
and Exchange Commission to take additional evidence when
hearing an administrative appeal); 

(c)(3)
(permitting the Federal Communications Commission to do the
same); 

 (permitting the Board of Veterans’
Appeals to consider new evidence submitted within ninety
days following the initial hearing).



                              18
Gas Act – it can still be an agency undertaking review on
administrative appeal.5


5
  In a footnote, Transco advocates for using this Court’s much-
maligned test announced in Baughman v. Bradford Coal Co.,

 (3d Cir. 1979), for construing the meaning of the
term ‘court’ when used in a statute. See Sun Buick, Inc. v. Saab
Cars USA, Inc., 

 (3d Cir. 1994)
(questioning Baughman’s “functional” approach to
determining whether an agency is a ‘court’); Friends of the
Earth v. Consol. Rail Corp., 

, 62 (2d Cir. 1985)
(declining to adopt the Baughman approach and hueing closely
to statutory text); Texans United for a Safe Econ. Educ. Fund
v. Crown Cent. Petroleum Corp., 

 (5th Cir.
2000) (same); Sierra Club v. Chevron U.S.A., Inc., 

, 1524–25 (9th Cir. 1987) (same). But the relevant scope-
defining term in the original-and-exclusive-jurisdiction clause
is ‘civil action’ – not ‘court.’ See 15 U.S.C. § 717r(d)(1). Even
though this Court’s later interpretation of ‘civil action’ for
purposes of the original-and-exclusive-jurisdiction clause
defined ‘civil action’ as proceedings before a court, see
Bordentown, 903 F.3d at 266–67, the Baughman test does not
apply because it provided guidance on statutory construction –
not the relevance or application of precedent. See Herr v. U.S.
Forest Serv., 

 (6th Cir. 2015) (Sutton, J.)
(“[W]e don’t read precedents like statutes.”). Moreover, this
Court has never held a state administrative agency to be a court
under the Baughman test. See Baughman, 

(holding that the EHB was not a court for purposes of the prior-
enforcement limitation on the citizen-suit provision of the
Clean Air Act, 

(b)(1)(B)); see also Sun Buick,

 (holding that the Pennsylvania Board of
Vehicle Manufacturers, Dealers and Salespersons was not a
state court for purposes of the federal removal statute).
Accordingly, Baughman has neither binding nor persuasive
force here.



                               19
   In short, none of the rationales offered by Transco
demonstrate that the environmental advocates’ administrative
appeal to the EHB of PADEP’s issuance of the Sub-Permits is
expressly preempted by the Natural Gas Act.

   B. An Administrative Appeal to the EHB Is Not
      Field Preempted.
    Transco also relies on field preemption as a basis for
enjoining the administrative appeal to the EHB. Under field
preemption, federal law renders inoperative all state law in an
area – even harmonious state regulatory efforts. See Oneok,
Inc. v. Learjet, Inc, 

 (2015); Arizona,

. Field preemption may be implied when
federal law either occupies a field of regulation “so
comprehensively that it has left no room for supplementary
state legislation,” Murphy v. Nat’l Collegiate Athletic Ass’n,

 (2018) (quoting R.J. Reynolds Tobacco Co.
v. Durham County, 

 (1986)), or “touch[es] a
field in which the federal interest is so dominant that the federal
system will be assumed to preclude enforcement of state laws
on the same subject,” Rice v. Santa Fe Elevator Corp.,

 (1947). Implicit in Congress’s authority to
define the preempted field is its ability to create express
exceptions through anti-preemption clauses that carve out
permissible areas of state regulation from an otherwise
preempted field. See Pac. Gas & Elec., 

(“[T]he federal government has occupied the entire field of
nuclear safety concerns, except the limited powers expressly
ceded to the states.”); Int’l Paper Co. v. Ouellette, 

 (1987) (“Although Congress intended to dominate the
field of pollution regulation, the saving clause negates the
inference that Congress ‘left no room’ for state causes of
action.”); Farina, 

 (recognizing that Congress
may through a “savings provision” leave some room for state
regulation in an otherwise preempted field).
    Transco contends that the Natural Gas Act field preempts
state regulation of interstate natural gas pipelines so as to



                                20
render inoperative the Pennsylvania statute, 35 Pa. Stat. Ann.
§ 7514(c), which allows administrative appeals to the EHB.
The keystone of its argument is the Supreme Court’s decision
in Schneidewind v. ANR Pipeline Co., 

 (1988),
which held that the Natural Gas Act implicitly preempts the
field of interstate natural gas pipeline regulation such that state
requirements for the issuance of securities by pipelines have no
legal effect. 

, 306–10.

    But in analyzing field preemption, a court must “proceed
cautiously, finding pre-emption only where detailed
examination convinces [it] that a matter falls within the pre-
empted field.” Oneok, 

. Here, such a detailed
examination begins with recognizing that the field of state
regulation preempted by the Natural Gas Act is not impervious
to exceptions. See 

 (emphasizing that the Natural Gas Act
“was drawn with meticulous regard for the continued exercise
of state power, not to handicap or dilute it in any way.”
(quoting Panhandle E. Pipe Line Co. v. Pub. Serv. Comm’n of
Ind., 

, 517–18 (1947))). In particular, the Natural
Gas Act has an anti-preemption clause that preserves the rights
of states granted by three other federal statutes:

       Except as specifically provided in [the Natural
       Gas Act], nothing in [the Natural Gas Act]
       affects the rights of States under [the Coastal
       Zone Management Act, the Clean Air Act, or the
       Clean Water Act].

15 U.S.C. § 717b(d) (emphasis added).

    Still, that clause is not an airtight anti-preemption provision
because it allows for the Natural Gas Act to limit the scope of
state regulation under those three statutes. See id. But because
any such limitation must be “specifically provided,” id., the
clause leaves open the possibility of only express preemption
with respect to states’ rights under those three statutes – and it
forecloses any form of implied preemption. Id. Thus, the



                                21
clause expressly carves out permissible state regulation from
an otherwise preempted field and prevents any form of implied
preemption with respect to those preserved areas of state
regulation.

    As a result of that anti-implied-preemption clause, only an
express provision in the Natural Gas Act can preempt state
regulation related to interstate natural gas pipelines under the
Clean Water Act. Yet, as explained above, the Natural Gas Act
does not contain such an express preemption provision to that
effect. And without one, the provisions of the Clean Water Act
that enable states to issue Water Quality Certifications, see

(a)(1), and to impose attendant conditions and
sub-conditions on those certifications for interstate natural gas
pipelines, see 

 § 1341(d), are not preempted by the Natural
Gas Act.

    Transco presses the point, however. It insists that the extent
of permitted state regulation under the anti-preemption clause
is limited to PADEP’s permitting decisions and does not
include administrative appeals to a separate state agency, such
as the EHB. But the preservation of state regulatory authority
under an anti-preemption clause also allows states to “us[e]
appropriate tools to exercise that authority.” Chamber of Com.
v. Whiting, 

 (2011) (Roberts, C.J., plurality
opinion). And the Pennsylvania statute authorizing an
administrative appeal to the EHB from PADEP permitting
decisions under the Clean Water Act, 35 Pa. Stat. Ann.
§ 7514(c), is reasonably in furtherance of the Clean Water Act
powers reserved for states – those of deciding whether to issue
a Water Quality Certification and whether to impose
conditions and sub-conditions on the certification. Thus, an
administrative appeal to the EHB represents the exercise of an
appropriate tool to implement the powers reserved to
Pennsylvania under the anti-preemption clause of the Clean
Water Act, and therefore that administrative appeal process is
not subject to field preemption.




                               22
    In sum, through the anti-implied-preemption clause in the
Natural Gas Act, if state regulation is permitted under the
Clean Water Act, then neither the regulation itself nor
appropriate tools to effectuate that regulation are field
preempted. Consequently, as a state procedure reasonably in
furtherance of the preserved area of state regulation, an
administrative appeal to the EHB of PADEP permitting
decisions under the Clean Water Act related to interstate
natural gas pipelines is not subject to field preemption.

    C. Obstacle Preemption Does Not Bar
       Administrative    Appeals      of PADEP
       Permitting Rulings to the EHB.
    Transco and PADEP also argue that an administrative
appeal to the EHB poses an obstacle to the full attainment of
purposes and objectives of the Natural Gas Act and must
therefore be rendered inoperative as an implied conflict with
federal law. See generally Geier v. Am. Honda Motor Co.,

 (2000) (explaining that even though an
anti-preemption clause may save state law from being
expressly preempted, that does not preclude a finding of
conflict preemption (citing Freightliner Corp. v. Myrick,

, 288–89 (1995))); Fid. Fed. Sav. & Loan Ass’n
v. de la Cuesta, 

 (1982) (“Even where
Congress has not completely displaced state regulation in a
specific area, state law is nullified to the extent that it actually
conflicts with federal law.”).6 Under obstacle preemption,
when a state law “‘stands as an obstacle to the accomplishment
and execution of the full purposes and objectives’ of a federal

6
  Neither Transco nor PADEP argues that a conflict can be
implied because of the impossibility of compliance with both
federal and state requirements. Cf. PLIVA, Inc. v. Mensing,

 (2011) (explaining that when it is
“impossible for a private party to comply with both state and
federal requirements” the state requirements are conflict
preempted (quoting Freightliner, 

)).



                                23
law,” that rises to the level of a conflict for which preemption
may be implied. Williamson v. Mazda Motor of Am., Inc.,

, 330 (2011) (quoting Hines v. Davidowitz,

 (1941)); see also Geier, 

(explaining that conflict preemption is a form of implied
preemption).
    Here, both Transco and PADEP infer from the original-
and-exclusive-jurisdiction clause, see 15 U.S.C. § 717r(d)(1),
that a purpose of the Natural Gas Act is streamlined review in
federal appellate court of state permitting decisions under the
Clean Water Act required for interstate natural gas pipelines.
See Del. Riverkeeper Network v. Sec’y Pa. Dep’t of Env’t Prot.
(Riverkeeper I), 

 (3d Cir. 2016) (explaining
that a purpose of § 717r(d)(1) is to “streamline the review of
state decisions taken under federally-delegated authority”).
And that purpose, in their view, is impeded by the
Pennsylvania statute, 35 Pa. Stat. Ann. § 7514(c), that allows
an administrative appeal to the EHB of PADEP permitting
decisions under the Clean Water Act related to interstate
natural gas pipelines. Their arguments for obstacle preemption
do not succeed.

        1. The Availability of an Administrative
            Appeal to the EHB Does Not Pose an
            Obstacle to Judicial Review in This
            Court.
    Through different approaches, Transco and PADEP each
assert that EHB dispositions are not directly reviewable in this
Court, and as a result, an administrative appeal to the EHB
presents an obstacle to streamlined review in federal appellate
court.     Transco argues that the original-and-exclusive-
jurisdiction clause in § 717r(d), through the independent
operation of the terms ‘issue’ and ‘pursuant to,’ forecloses this
Court’s ability to review EHB dispositions. PADEP also
contends that EHB dispositions are not reviewable in federal
court, but it relies on the administrative record provisions in
§ 717n, which, in its view, modify the original-and-exclusive-



                               24
jurisdiction clause to prevent judicial review of final decisions
by the EHB.         As explained below, neither of those
constructions of the Natural Gas Act is correct: a state agency’s
disposition of an administrative appeal regarding a condition
or sub-condition on a Certificate of Public Convenience and
Necessity is subject to judicial review in federal appellate
court. Thus, Transco and PADEP’s un-reviewability concerns
are phantoms, and they do not pose an obstacle to streamlined
judicial review in this Court.

           a. Purported Un-Reviewability Based
               on § 717r(d)(1)
    Transco bases its un-reviewability assertion on the text of
the original-and exclusive-jurisdiction clause. In addition to
‘civil action,’ several other terms in that clause bound the
subject-matter jurisdiction conferred by § 717r(d)(1),
including the terms ‘issue, condition, or deny,’ ‘permit, license,
concurrence, or approval,’ and ‘pursuant to Federal law’:

       The United States Court of Appeals for the
       circuit in which a facility subject to section 717b
       of this title or section 717f of this title is proposed
       to be constructed, expanded, or operated shall
       have original and exclusive jurisdiction over any
       civil action for the review of an order or action
       of a Federal agency (other than the Commission)
       or State administrative agency acting pursuant to
       Federal law to issue, condition, or deny any
       permit, license, concurrence, or approval
       (hereinafter collectively referred to as “permit”)
       required under Federal law, other than the
       Coastal Zone Management Act of 1972 . . . .

15 U.S.C. § 717r(d)(1) (emphases added).

    For the term, ‘issue,’ Transco emphasizes that the Natural
Gas Act authorizes judicial review of only the agency decisions
that “issue, condition, or deny any permit, license,



                                 25
concurrence, or approval.” Id. (emphasis added). From there,
it contends that as a matter of state law, the EHB does not issue
the Sub-Permits, only PADEP does. Compare, e.g., 35 Pa.
Stat. Ann. § 691.5(b)(5) (authorizing PADEP to issue permits
under the Clean Streams Law), with id. § 691.7(a) (authorizing
the EHB to review PADEP’s issuance of permits under the
Clean Streams Law). Thus, according to Transco, once there
has been an administrative appeal to the EHB, judicial review
in a federal appellate court would be unavailable – in
contravention of § 717r(d)(1).

     At the outset, Transco’s argument is incomplete because it
ignores the disjunctive listing of the agency actions subject to
judicial review: the statute applies to state agency orders that
“issue, condition, or deny” permits. 15 U.S.C. § 717r(d)(1)
(emphasis added). So, even if Transco is correct that the EHB
cannot itself issue the challenged Sub-Permits, there would still
be the option of judicial review in this Court for EHB decisions
that condition or deny permits. See Pequea Township,
716 A.2d at 686–87 (explaining that when the EHB reviews
the actions of PADEP it may uphold or vacate an order, or may,
if it finds an abuse of discretion “order the issuance of permits
with different terms and conditions than those originally
imposed by [PADEP]”); Browning-Ferris Indus., Inc. v. Dep’t
of Env’t Prot., 

 (Pa. Commw. Ct. 2003)
(same); see also Leatherwood, 

 (affirming
EHB’s revocation of a permit).

    But it is not only EHB decisions that condition or deny
permits related to interstate natural gas pipelines that may be
challenged in this Court.          The original-and-exclusive-
jurisdiction clause applies to the issuance, conditioning, or
denial of “any permit, license, concurrence, or approval.”
15 U.S.C. § 717r(d)(1) (emphasis added). So if the EHB does
not condition or deny a permit, its disposition on administrative
appeal will constitute the issuance of an approval of PADEP’s
permitting decision. Thus, under any scenario, a disposition
by the EHB on administrative appeal would be within the



                               26
original-and-exclusive-jurisdiction clause and would therefore
be subject to judicial review in this Court.

    As a variation on a theme, Transco contends that the
‘pursuant to’ phrase also prevents judicial review in federal
appellate court of EHB dispositions. By its terms, the original-
and-exclusive-jurisdiction clause allows review of the orders
of state administrative agencies but only when those agencies
act “pursuant to Federal law.” Id. And Transco argues that the
EHB does not act pursuant to federal law when it adjudicates
an administrative appeal related to PADEP permits and sub-
permits required for a Certificate of Public Convenience and
Necessity.

    That assertion disregards the field preemptive effect of the
Natural Gas Act. Because the Natural Gas Act generally
displaces state law in the field of interstate-natural-gas-pipeline
regulation, see Schneidewind, 

, 306–10, any
state regulatory action on that subject matter occurs only by
virtue of the anti-preemption clause, see 15 U.S.C. § 717b(d).
Therefore, any such state regulation is pursuant to federal law.
See Riverkeeper I, 

 (“The Natural Gas Act
preempts state environmental regulation of interstate natural
gas facilities, except for state action taken under those statutes
specifically mentioned in the Act: the Coastal Zone
Management Act, the Clean Air Act, and the Clean Water Act.
In other words, the only state action over interstate natural gas
pipeline facilities that could be taken pursuant to federal law is
state action taken under those statutes.” (footnote omitted)).7
And, as explained above, an administrative appeal to the EHB
7
  See also Harrow v. Dep’t of Def., 

, 1184
(2024) (explaining that “pursuant to” is often used to denote
that an action was taken “under” some provision or that the
provision “served as the basis” for acting); Murphy, 584 U.S.
at 468–69 (explaining that where a law authorizes an action, a
person acting in accord with that authorization can be said to
act ‘pursuant to’ that law).



                                27
is within the scope of the anti-preemption clause. Thus, an
EHB disposition of such an administrative appeal would be
within the ‘pursuant to federal law’ requirement and subject to
review through a civil action in this Court, leaving no obstacle
to that purpose of the Natural Gas Act. See 15 U.S.C.
§ 717r(d)(1); cf. Riverkeeper I, 833 F.3d at 371–72 (holding
that PADEP permitting decisions for interstate natural gas
pipelines are pursuant to federal law).

           b. Purported Un-Reviewability Based
               on § 717n
    PADEP’s theory of obstacle preemption rests on a different
codified provision of the Natural Gas Act, 15 U.S.C. § 717n,
which imposes an obligation on FERC to prepare an
administrative record for “Federal authorization[s],” as that
term is statutorily defined. Id. § 717n(a) (defining ‘Federal
authorization’), (d) (imposing administrative record
obligations). PADEP argues that FERC’s administrative
record obligations under § 717n limit the scope of the original-
and-exclusive-jurisdiction clause, so that it allows judicial
review of only Federal authorizations. PADEP rounds out its
argument by asserting that EHB dispositions do not qualify as
Federal authorizations, and therefore they are beyond the reach
of the original-and-exclusive-jurisdiction clause.

    The problem with PADEP’s argument is that it assumes the
incompleteness of the original-and-exclusive-jurisdiction
clause so that the definition of ‘Federal authorization’ in
§ 717n is needed to supply missing meaning. But the clause is
not lacking in that respect: it defines a federal appellate court’s
jurisdiction through terms such as ‘civil action,’ ‘issue,
condition, or deny,’ ‘permit, license, concurrence, or
approval,’ and ‘pursuant to Federal law.’                15 U.S.C.
§ 717r(d)(1). It does not mention or incorporate by reference
the term ‘Federal authorization,’ which is defined only for
purposes of § 717n – not for the entirety of the Natural Gas
Act. Thus, there is no ready basis for reading the term ‘Federal




                                28
authorization’ as a limitation on the original-and-exclusive-
jurisdiction clause.

    In sum, the identified provisions of the Natural Gas Act –
in particular the terms ‘issue’ and ‘pursuant to’ as well as the
administrative record requirements in § 717n – do not
extinguish the possibility of judicial review in this Court of an
EHB ruling regarding a condition or sub-condition for a
Certificate of Public Convenience and Necessity.
Consequently, those provisions do not justify implying
obstacle preemption to preclude administrative appeals to the
EHB.
       2. The Possibility of Multiple Challenges
          in Different Fora to PADEP Permitting
          Decisions Under the Clean Water Act
          for Interstate Natural Gas Pipelines
          Does Not Impose an Obstacle to the
          Purposes of the Natural Gas Act.
    PADEP also raises a practical concern – multiplicity of
suits – that it contends presents an obstacle to the achievement
of the purposes and objectives of the Natural Gas Act.
PADEP’s permitting decisions required for a Certificate of
Public Convenience and Necessity may be challenged through
two separate mechanisms: an administrative appeal to the
EHB, see 35 Pa. Stat. Ann. § 7514(c), or a civil action in this
Court, see Riverkeeper III, 903 F.3d at 74–75. Those separate
challenges may be brought by different persons, on different
records. Compare Leatherwood, 819 A.2d at 611 (requiring
the EHB to prepare the administrative record), with 15 U.S.C.
§ 717n(d)(2) (providing that the record be compiled by FERC).
And, as PADEP sees it, the burdens of allowing multiple
challenges in different fora based on separate administrative
records poses an obstacle to the inferred goal of the Natural
Gas Act of streamlined litigation in one forum – a federal
appellate court.




                               29
    PADEP’s concern is legitimate. But it is not sufficiently
grounded in a conflict between federal and state law. By
allowing state regulation under the Clean Water Act, see
15 U.S.C. § 717b(d), the Natural Gas Act necessarily
compromises the streamlined judicial review that would occur
if only one agency, such as FERC, had sole control over
authorizing interstate natural gas pipeline construction and
expansion projects. Thus, when assessing the goals of the
Natural Gas Act, the purpose of creating a streamlined process
for judicial review of state permitting decisions under the
Clean Water Act cannot be viewed as an absolute principle.
See Rodriguez v. United States, 

, 525–26 (1987)
(“But no legislation pursues its purposes at all costs. Deciding
what competing values will or will not be sacrificed to the
achievement of a particular objective is the very essence of
legislative choice – and it frustrates rather than effectuates
legislative intent simplistically to assume that whatever
furthers the statute’s primary objective must be the law.”
(emphasis omitted)). Instead, the purpose of streamlined
review must be balanced against the Natural Gas Act’s express
preservation of a role for states in the administration of
environmental laws. See 15 U.S.C. § 717b(d).

     Those multiple purposes of the Natural Gas Act hinder the
implication of obstacle preemption. When a federal statute has
multiple purposes that are in partial tension with one another,
that statute should not be construed to impliedly preempt state
regulatory efforts in conflict with one of the statute’s purposes
if that state regulation furthers another of the statute’s principal
purposes. See Whiting, 

 (Roberts, C.J.,
plurality opinion) (explaining that a state law that implements
a program that Congress expressly permitted is not in conflict
with federal law); see also Bonito Boats, Inc. v. Thunder Craft
Boats, Inc., 

, 166–67 (1989) (“The case for
federal pre-emption is particularly weak where Congress has
indicated its awareness of the operation of state law . . . and has
nonetheless decided to ‘stand by both concepts and to tolerate
whatever tension there [is] between them.’” (second alteration



                                30
in original) (quoting Silkwood v. Kerr-McGee Corp., 

 (1984))); Williamson, 562 U.S. at 335 (rejecting an
argument that a stricter state safety standard was conflict
preempted since the statute contemplated a “continued
meaningful role for state tort law”). And here, the possibility
of multiple, separate challenges in different fora on different
administrative records is a byproduct of the anti-preemption
clause in the Natural Gas Act, which allows states to retain
their powers under the Clean Water Act with respect to
interstate natural gas pipelines. See 15 U.S.C. § 717b(d).
Therefore, while a legitimate concern, the prospect of a
multiplicity of challenges to a PADEP permitting decision for
an interstate natural gas pipeline project is not a basis for
implying obstacle preemption. Rather, it is a consequence of
the Natural Gas Act’s allowance of state involvement in Clean
Water Act regulation of interstate natural gas pipelines.

       3. As a Form of Implied Preemption,
          Obstacle Preemption Is Foreclosed by
          the Anti-Implied-Preemption Clause.
    Finally, even if Transco and PADEP’s concerns otherwise
posed an obstacle that could justify conflict preemption, the
original-and-exclusive-jurisdiction clause would still prevent
implied preemption. As explained above, the Natural Gas
Act’s anti-preemption clause prevents all forms of implied
preemption of state regulation within its scope. And because
that clause permits state regulation of interstate natural gas
pipelines under the Clean Water Act, no such state regulation
may be impliedly preempted. See 15 U.S.C. § 717b(d).
Consequently, even if an administrative appeal to the EHB of
a PADEP permitting decision under the Clean Water Act
related to an interstate natural gas pipeline did pose an obstacle
to the purposes and objectives of the Natural Gas Act, the anti-
implied-preemption clause in § 717b(d) would prevent conflict
preemption.




                               31
                  III. CONCLUSION
    For the foregoing reasons, Transco and PADEP’s
preemption arguments fail as a matter of law, and therefore it
is not necessary to address the remaining preliminary-
injunction considerations to affirm the denial of Transco’s
motion. See Munaf, 

.




                             32