Federal Regulations Do Not Necessarily Preempt State Adjudications

Nov 28, 2018

The Third Circuit rules that the NJDEP cannot refuse a petition challenging a Federally permitted project.

The federal government allows states to regulate many federally mandated programs. This is especially true for environmental statutes.

A recent Third Circuit case, reviewed in an article by John G. Valeri, Jr. in Environmental Law Blog, provides Petitioners with “the right to request an administrative hearing for State-issued environmental permits, even for certain Federally-permitted projects.” Township of Bordentown, et.al. v. FERC, No. 17-3207 (3rd Cir. September 15, 2018)

The Court “held that the New Jersey Department of Environmental Protection (‘NJDEP’) could not deny the Petitioners the ability to request an adjudicatory hearing under the New Jersey Freshwater Protection Act (‘FWPA’) solely on the basis of preemption of the Federal Natural Gas Act (‘NGA’)”

Transcontinental Gas Pipe Line Co. (‘TRANSCO’) obtained a permit to improve its pipelines in New Jersey “from the Federal Energy Regulatory Commission (‘FERC’) under the NGA.”

NJDEP, pursuant to federal permitting authority for certain navigable waters such as those involving TRANSCO’s project, issued the permit.

The Township of Bordentown challenged the project and requested an adjudicatory hearing. “NJDEP denied the hearing based solely upon the NGA’s requirement that the federal courts have exclusive jurisdiction to review issuance of permits such that the state administrative hearing process is not applicable.”

The Third Circuit overruled the NJDEP, “concluding that the [NGA’s] jurisdiction is limited to civil actions, and not to administrative proceedings.”

Mr. Valeri recommends that federal contractors allow additional time and money in their project budgets for the permitting process, and the appeal process that is likely to follow, where there are potential environmental issues.

Source—

Third Circuit Opinion Sets Precedent That Implicates Projects Involving State-Issued Environmental Permits, John G. Valeri, Jr., Environmental Law Blog, October 5, 2018.