NOT PRECEDENTIAL UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT

_____________ No. 17

- 1456

_____________ DELAWARE RIVERKEEPER NETWORK; MAYA VAN ROSSUM, Pet itioners

v. SECRETARY PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION; PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION, Respondents PennEast Pipeline, Co., LLC, Intervenor

_______________ On Petition for Review of an Order of the Pennsylvania Department of Environmental Protection ( File No s . WQ02

- 005 & CP15

- 558

- 000 )

__________ _____ Submitted Under Third Circuit LAR 34.1(a)

October 12, 2017 Before: CHAGARES, JORDAN , and FUENTES, Circuit Judges.

(Filed : September 20, 2018 )

_______________ OPINION *

_______________

* This disposition is not an opinion of the full court and, pursuant to I.O.P. 5.7, does not constitute binding precedent.2

JORDAN, Circuit Judge

. This case concerns a pipeline proje ct (the “Project”) owned by PennEast Pipeline Company, LLC (“PennEast”). The Project involves the construction and operation of a
120

- mile interstate natural gas pipeline that will move natural gas from the Marcellus Shale region in northeastern Pennsylva nia to delivery points in lower Pennsylvania and New Jersey. At issue is a decision of the Pennsylvania Department of Environment al Protection (“PADEP”) to grant to PennEast a Water Quality Certification under Section
401 of the Clean Water Act. 33 U.S.C

. § 1341(a)(1). The Petitioner, Delaware Riverkeeper Network (“DRN”) , 1 in addition to challe nging PADEP’s decision on the merits, argues that the Certification issue is not ripe for review

. For the reasons that
follow , we conclude that we do have jurisdic tion and that DRN’s challenge to the
Certification fails on the m erits.
I. Background
A. Regulatory Background
The Natural Gas Act provides a comprehensive statutory scheme for regulating the transportation and sale of nat ural gas in interstate commerc e and gives t he Federal Energy Regulatory Commission (“FERC”) exclusive jurisdiction to coordinate the
federal authorizations required for pipeline construction . 15 U.S.C. § § 717(b)
and 717n(b). No natural gas company may construct a pipeline until it re ceives “a certificate of public convenience and necessity” from FERC. Id

. § 717f(c)(1)(A). FERC

1 For simplicity, we refer to the two Petitioners

– the Delawar e Riverkeeper Network and Maya Van Rossum, who identifies herself as the Delaware Riverkeeper

– in the singular.3

may grant such a certificate if it finds that a project complies with the requirements of all
relevant federal laws. Id. § 717f (e)

. The states also have a s ay. Certain regulatory authority is preserved to them under the Coastal Zone Management Act of 1972, the Clean Air Act, and the Clean Water Act

. Id. § 717b(d). FERC cannot grant a certificate of p ublic convenience and necessity unless the
affected s tat es either waive the exercise of their regulatory power or certify that the pipeline project will comply with the Clean Water Act and other state

- administered water quality standards. 33 U.S.C. § 1341(a)(1). Furthermore, sta tes can place limitations on
th eir certification s , which “shall become a condition on any [f]ederal license or permit , ”
Id. § 1341(d), including the “certificate of public convenience and necessity

. ” Under Pennsylvania law, PADEP is responsible for Wate r Quality Certifications, 35 P .S. § 691.5, and any decision of PADEP can be appealed to the Commonwealth’s
Environmental Hea ring Board (the “EHB”) within thirty days. 25 Pa. Code § 1021.52(a)( 1 ) , (a) ( 2 ) (i).
B . Factual Background PennEast filed an application with FERC seeking a certifi cate authoriz ing it to start constructing its pipeline. As part of that process, PennEast also submitted an application to PADEP on February 9, 2016 , seeking a Water Quality Certification
p ursuant to Section 401 of the Clean Water Act

. PADEP issued a not ice of that application in the Pennsylvania Bulletin and accepted public comments for thirty days

. P a. Dep ’ t. of Envtl. Prot. , Bu reau of Water Quality Prot. , No. 362

- 2000

- 001, P ermi tting Policy & Procedure M anual § 400 at 6. Approximately one year later, o n February 7,4

2017, PADEP issued the requested Certification to PennEast , subject to the conditions that the Project obtain a discharge permit, an erosion and sediment control permit, and water obstruction and encroachment permits. A notice of the appro val was promptly published in the Pennsylvania Bulletin . That notice instructed aggrieved persons to petition our Court for review of the Certification. Almost immediately, DRN filed a petition for review , and , some six months later , also filed with the EHB an appeal of PADEP’s decision. Del. Riverkeeper Network v. Dep’t of Envtl. Prot. , No. 1571 C.D. 2017, 2018 WL 3637059 , at *3 (Pa. Commw. Ct. Aug. 1, 2018).
II. Discussion 2
D espite having fil ed a petition for review, DRN assert s that its claims are not ripe
and that we thus lack jurisdiction in this matter

. In the alternative , DRN ask s us to rescind the Water Quality Certification on the merits , based on a variety of claims. We addressed many of th ose claims in our recent decision in Del aware River keeper Network
v. Sec retary P ennsylvania Dep artment of Env ironmental Prot ection , Nos. 16

- 2211/2212/2218/2400,

--- F.3d

--- , 2018 WL 4201626 (3d Cir. Sept. 4, 2018) ( Riverkeeper III

).

2 Our j urisdiction is disputed. See infra Section II.A. “[W]e review for arbitrary and capricious agency action.” Del

. Riverkeeper Network v. Sec ’y of P a. Dep t. of Env tl. Prot

. , 870 F.3d 171, 179 (3d Cir. 2017) ( Riverkeeper II ).5

A. Jurisdiction We have original and exclusive jurisdic tion to hear “ any civil action for the rev iew of an order or action of a [f] ederal agency ... o r State administrative agency ... to issue, condition, or deny any permit, license , concurrence , or approval” of a permit required by
the Natural Gas Act. 15 U.S.C. § 717r(d)(1)

. “ [ W ] hen such agency action is made

‘ reviewable by statute ’ , the Administrative Procedure Act authorizes a broad scope of review, without limiting courts to considering only federal law. ” Riverkeeper III , 2018 WL 4201626, at *9 (internal citation omitted )

. Nevertheless, DRN contend s that we lack jurisdiction to review its petition

. Relying on Berkshire Environmental Action Team , Inc. v. Tennessee Gas Pipeline Co., LLC , 851 F.3d 105 (1st Cir. 2017), it argues that the Natural Gas Act only permits us to h ear suits involving final agency action s and that PADEP’s decision is not final until the EHB has ruled on its appeal. That argument, however, is foreclosed by our decision in Riverkeeper III , 2018 WL 4201626 , at *6, a case with nearly identical facts, in which we held that a decision by PADEP is a final agency action that is fully ripe for review

. 3 There, we held that Berkshire Environmental
is inapposite because of differences between the Massachusetts law at issue in that case and Pennsylvania ’s regula tory scheme

. Riverkeeper III , 2018 WL 4201626, at * 5

. That
remains true here. Unlike the decisions of the Massachusetts Department of
Environmental Protection at issue in Berkshire Environmental , which were without legal

3 Moreover, even before our decision in Riverkeeper III , this suit wa s likely ripe. By waiting more than thirty days to file their petition with the EHB , DRN argua bly forfeited its right to appeal PADEP ’s decision to the EHB, and , if that right was forfeited, PADEP’s decision was thus final. Riverkeeper II , 870 F.3d at 178.6

effect until after the period to appeal had passed and where the appeal was conducted within the same agency, PADEP’s decisions are “immediately effective” and “[t]he Department and Board are entirely independent agencies.” Riverkeeper III , 20 18 WL
4201626 , at *5. Thus, DRN’s petition is now ripe and we have jurisdicti on to review the
merits of its claim.
B. DRN’s Claims Turning to the merits, DRN contends that we should rescind PADEP’s issuance of the Water Quality Certification

. It says that there was a lack of notice, that PADEP
arbitrar il y and capricious ly violated its own procedures, that PADEP violated the Pennsylvania Constitution, and that PADEP violated the Takings Clause of the Fifth
Amendment to the United States Constitution. We disagree on all counts.
DRN first argue s that PADEP’s grant of the Water Quality Certification is invalid because the notice and comment period for the Certificat ion predated the issuance of
certain required underlying permits. But Riverkeeper III forecloses that argument. “Notice need only be adequate to allow interested parties to participate meaningfully in the process that is actually pending, and PADEP’s process for granting Water Quality Certifications does not involve immediate consideration of any substantive permits. ...
Since PADEP is n ot required to conduct that review at this stage, it would make little sense to require it to provide notice of the same.” Id

. at , *7

. Next, DRN assert s that PADEP’s decision to issue the Certification now, conditioned on obtaining further permits late r, was arbitrary and capricious because the
agency did not foll ow its own rules. But that argument too is resolved by an earlier case.7

As we stated in Riverkeeper III , our decision in Delaware Riverkeeper Network v.
Sec retary P ennsylvania Department of E nvironmental Protection , 833 F.3d 360 (3d Cir. 2016) ( Riverkeeper I

), “held that PADEP’s preferred procedure for considering Certifications along with other permits was not arbitrary and capricious because

... since
no construction can b egin before [PADEP] g rants the substantive permits, and all interested parties will have a full opportunity to weigh in

... [on those] applications[.]” Riverkeeper III , 2018 WL 4201626 , at *8. The third argument DRN advances is that PADEP did not comply with its duties
under Article I, Section 27 of the Pennsylvania Constitu tion, which obligates the Commonwealth’s government to hold its natural resources in trust. That argumen t fails,
if for no other reason , because PADEP’s decision to grant a Water Quality Certification
is c onditioned on obtaining other substantive permits for which PADEP will still have to
consider Article I, Section 27

. See Riverkeeper III , 2018 WL 4201626, at *9 ( concluding that argument “ fails for the same reason that we rejected Petitioners’ argument th at PADEP’s decision to grant a Water Quality Certification conditioned on obtaining other permits was arbitrary and capricious [, because the ]

... Petitioners cannot show that they have been harmed by the

... [ conditional] decision [.]” ). Lastly, DRN argue s t hat PADEP’s issuance of a conditional Water Quality Certification violated the Taking s Clause of the Fifth Amendment to the United States
Constitution

. R egardless of the merits of that assertion , and ignoring serious questions about DRN’s standing to rais e a takings argument, cf. Gunpowder Riverkeeper v. FERC , 807 F.3d 267, 274

- 75 (D.C. Cir. 2015) (considering “ whether an injury arising8

specifically by reason of eminent domain can sustain a cl aim under the [Clean Water Act]” and determining that it cannot because such an injury is outside of the zone of interests protected by the statute), we do not reach the merits of that argument. It is essentially “a challenge to FERC’s order granting a Certificate of Public Convenience and Necessity

... [and] may only b e challenged by a request for rehearing before FERC itself, or by a petition for review by an appropriate federal circuit court.” Riverkeeper III , 2018 WL 4201626 , at *8

. As such, th at contention cannot be properly brought before us.
III. Conclusion For the foregoing reasons , we will deny the petition for review.