In an apparent case of first impression, the Third Circuit recently ruled that federal courts have jurisdiction over state water quality certifications required by the Clean Water Act (CWA). Section 401 of the CWA requires that an applicant for a federal license or permit obtain a certification from the state that any discharges from the facility will comply with the act, including state-established water quality standard requirements. On August 8, 2016, the Third Circuit issued a decision upholding state water quality certifications for a pipeline expansion project connecting gas wells in the Marcellus Shale region of central Pennsylvania to the Transcontinental (Transco) pipeline that runs from South Texas to New York City. Delaware Riverkeeper Network et al. v. Secretary, Pennsylvania Department of Environmental Protection et al., No. 15-2122, and New Jersey Conservation Foundation et al v. New Jersey Department of Environment et al., No. 15-2158 (3d Cir., August 8, 2016). Of particular significance is the Court’s finding that it had jurisdiction over the state certifications because the agencies were acting “pursuant to federal law” when they were issued.
The appeal involved two consolidated cases: Delaware Riverkeeper Network challenged the Pennsylvania Department of Environmental Protection’s water quality certification, and the New Jersey Conservation Foundation challenged the New Jersey Department of Environmental Protection’s water quality certification.
The Court found that a water quality certification is an integral part of the regulatory scheme of the CWA, and to deny the appeals court jurisdiction over the state’s permitting actions “would frustrate the purpose of Congress’ grant of jurisdiction.”1 The Court also found that the states’ participation in the permitting process for the pipeline constituted a waiver of the states’ sovereign immunity.2
While the Court found jurisdiction, the plaintiffs’ claims failed on the merits. The Court held that the state regulators afforded adequate public comment on the proposal, performed a sufficient public interest analysis and gave the appropriate consideration to the disturbance of water bodies and endangered species.
The Court’s finding of jurisdiction over the water quality certifications issued by the state regulators could have broad ramifications, as it potentially opens another avenue for plaintiffs to challenge controversial infrastructure projects in federal court.