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Delaware Riverkeeper Network v. Pennsylvania Department of Environmental Protection

ELR Citation: 48 ELR 20157
Nos. 16-2211, 16-2212, 16-2218, and 16-2400, (3d Cir., 09/04/2018)

The Third Circuit denied review of the Pennsylvania Department of Environmental Protection's decision to grant a CWA §401 certification for a natural gas pipeline project. Environmental groups argued that the department acted arbitrarily and capriciously by issuing a §401 certification that was immediately effective despite being conditioned on the pipeline company obtaining additional permits in the future. But the court held that the groups could not show they had been harmed by the department's decision not to provide notice of the substantive permits upon which it conditioned the certification. The groups also argued the department's decision violated its obligation to safeguard the Commonwealth's natural resources under the Pennsylvania Constitution, by granting the §401 certification before collecting the environmental impact data required to issue the substantive permits. But the court again concluded that the groups could not show they had been harmed, because the company will have to obtain those permits to begin construction and the department will have to consider the state constitution in deciding whether to grant or deny them. The court therefore denied the groups' petitions for review.