In January, the Pennsylvania Supreme Court issued an opinion that may require environmental practitioners to reconsider how they think about the Environmental Hearing Board. Cole v. Pennsylvania Department of Environmental Protection, No. 21 EAP 2023 (Pa. Jan 22, 2025), holds that the Natural Gas Act does not preempt EHB jurisdiction over a third-party appeal from issuance of a permit to construct - known as a "plan approval" - under the Air Pollution Control Act for a compressor station on a gas pipeline. That holding seems to conflict with a decision of the U.S. Court of Appeals for the Third Circuit in related litigation, Delaware Riverkeeper Network v Secretary of the Department of Environmental Protection, 903 F.3d 65 (3d Cir. 2018). The federal court saw an EHB appeal as a challenge to a final action of the regulator, the DEP. However, our supreme court disagreed, holding that the EHB appeal is just part and parcel of a single regulatory process beginning with the DEP, but not culminating until after an EHB adjudication. That is new.
LINKS
Read "Reconsidering How the Environmental Hearing Board Fits" on The Legal Intelligencer website. (subscription required)
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*The opinions expressed in this column are those of the author and do not necessarily reflect the views of Greenberg Traurig or its clients.