Federal Third Circuit Court Rules Citizens Air Quality Permit Challenge Against Adelphia Gateway’s Quakertown Natural Gas
Compressor Station May Go Forward Court Rejects Adelphia’s Attempt for a “Do-Over” in Federal Court After Losing at Commonwealth Court
(WEST ROCKHILL TOWNSHIP, BUCKS COUNTY – March 14, 2023) Notch another win
for Citizens in the long-running saga of the Adelphia Gateway Quakertown Compressor Station,
a significant industrial pollution source on a small property amidst houses and farms in this rural
community. The federal Third Circuit Court of Appeals, one step below the U.S. Supreme
Court, ruled today that Adelphia Gateway was not entitled to a different outcome in Federal
Court after receiving an adverse judgment in the Commonwealth Court of Pennsylvania in Cole
et al v. Department of Environmental Protection in 2021.
That case resolved in the affirmative the question of whether state permits issued for operations
which are part of interstate natural gas pipelines can be appealed at the Pennsylvania
Environmental Hearing Board (EHB). Neighbors have been seeking to present their case to the
Board since 2019 that the natural gas compressor station’s technologies and processes are
insufficiently protective of the environment and public health.
Neighbors Clifford Cole, Pamela West, Brian Weirback, Kathy Weirback, Todd Shelly, and
Christine Shelly oppose the DEP permit, an air quality Plan Approval, which would allow
Adelphia to emit hundreds of tons of air pollution into the community. The neighbors also
object to the droning industrial noise the station projects onto their quiet and peaceful properties.
Adelphia Gateway has maintained from the outset that the federal Natural Gas Act allows only
the federal Circuit Courts of Appeals to hear a challenge to a state permit issued to an interstate
natural gas pipeline-related pollution source. In 2021, the Pennsylvania Commonwealth Court
rejected that argument, stating that the EHB could hear the Neighbors’ appeal. In 2022, the
Federal District Court for the Middle District of Pennsylvania also rejected Adelphia’s
Complaint and request for an Injunction to prevent the Commonwealth Court’s ruling allowing
the EHB case to proceed. Adelphia appealed that decision to the Third Circuit, resulting in
today’s outcome.
The Third Circuit’s decision recognized the state court’s authority to rule on a question involving
interpretation of federal law (whether the Natural Gas Act preempts a state administrative
proceeding), accords respect to the state court decision, and further held that federal court could
not subsequently take up and rule on the same question involving the same parties.
As the Court stated: “When a party has its day in state court and loses, it is not permitted a do-
over in federal court. Were it otherwise, state court decisions would lack finality, litigation expenses would balloon, and lower federal courts would sit as quasi courts of appeals over state
courts.” Opinion, p. 16.
This outcome is particularly noteworthy given that the Third Circuit is the very court the Natural
Gas Act would ostensibly place sole jurisdiction for Court appeals of state permits. It has been
further established now that this preemption of review does not apply to state administrative
proceedings, such as those before the EHB. The case is of considerable legal interest because of
the broad implications for the application of state law in Pennsylvania, and potentially
neighboring states as well, in the context of a critical environmental struggle–the ongoing
development of Marcellus Shale natural gas fields in Northeast and Southwest portions of the
state and the pipeline networks necessary to support that exploitation.
“The Third Circuit today made it clear—appeals to the EHB in PA are not preempted by the
federal Natural Gas Act. This is a major win for the people of Pennsylvania resisting the
intrusion of gas industry polluters in their communities,” said Michael D. Fiorentino, attorney
for the Neighbors. “Citizens contending with natural gas pipeline facilities setting up in their
communities need the option for a robust, fact-finding appeal of DEP permits that are available
only before the Environmental Hearing Board.”
“That a few citizens could continue to win in state and federal Courts against the massive gas
industry is astounding,” said Pamela West, one of the neighbor-parties to the appeals. “We will
continue to strive to protect our families, the nature we are part of, our homes, and the quality of
our lives.”
“We shouldn’t give up the fight against big corporations when it comes to our family’s health,
safety and the future of our environment. If we don’t stand up, who will? We will continue to do
what we can to make a difference.” ~Brian and Kathy Weirback, neighbor-parties to the
appeals.
In the near future, it is expected that the PA Supreme Court, at which Adelpia had lodged yet
another appeal, will determine whether to also uphold the Commonwealth Court decision and
allow the EHB to re-establish a procedural timeline for the Neighbors’ challenge to the air
quality plan approval.
Today’s decision can be found on the Third Circuit docket for Adelphia Gateway, LLC v.
Pennsylvania Environmental Hearing Board, et al, No. 21-3356.
