Delaware Riverkeeper Network v. Pennsylvania Environmental Hearing Board
CourtCourt of Appeals for the Third Circuit
Date FiledOctober 14, 2026
Docket25-2134
StatusPublished
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Full Opinion
UNITED STATES COURT OF APPEALS FOR THE THIRD CIRCUIT
No. 25-2134
DELAWARE RIVERKEEPER NETWORK; MAYA K. VAN
ROSSUM; DELAWARE RIVERKEEPER; CITIZENS FOR
PENNSYLVANIA’S FUTURE,
Petitioners
v.
PENNSYLVANIA ENVIRONMENTAL HEARING BOARD and
PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL
PROTECTION
_____________________________
On Petition for Review of an Order of the Pennsylvania
Environmental Hearing Board
Board Member and Judge Bernard A. Labuskes, Jr., EHB
Docket No. 2023-026-L
Before: PORTER, MATEY, and AMBRO, Circuit Judges.
Submitted: June 5, 2026; Filed: Oct. 14, 2026
_____________________________
OPINION OF THE COURT
MATEY, Circuit Judge. A pipeline builder procured
Pennsylvania environmental permits required by federal law.
Objectors challenge that decision. But the Commonwealth
acted reasonably, so we will deny their petition.
I.
In 2021, Transcontinental Gas Pipe Line Company
(“Transco”) sought to expand natural gas transmission through
Pennsylvania, New Jersey, and Maryland by building two new
pipeline segments in Pennsylvania supported by associated
facilities (the “Project”). That required Transco to obtain “a
certificate of public convenience and necessity” from the
Federal Energy Regulatory Commission (“FERC”). 15 U.S.C.
§ 717f(b), (c); see 18 C.F.R. §§ 157.1–157.23.1 FERC issued
Transco a conditional certificate, which required Transco to
obtain a Water Quality Certification under Section 401 of the
Clean Water Act, because the Project’s Pennsylvania portions
could “result in . . . discharge into the navigable waters.” 33
U.S.C. § 1341(a). Complying, Transco asked for certification
from the Pennsylvania Department of Environmental
Protection (“PADEP”) that any discharge would comply with
applicable federal and state law. See id. PADEP conditionally
certified the Project, contingent on Transco’s receipt of certain
Pennsylvania water quality permits: (1) an Erosion and
Sediment Control Permit and (2) Water Obstruction and
Encroachment Permits for each of two affected counties (the
“102 Permit” and “105 Permits,” respectively). See 25 Pa.
Code §§ 102, 105.2 About a year later, after public hearings
1
Department of Energy Organization Act, Pub. L. No.
95-91, § 402(a)(1)(D), 91 Stat. 565, 584 (1977).
2
Chapter 102 primarily relates to work done in upland
areas, while Chapter 105 primarily relates to work done in
water resources. To receive a 102 permit, “persons proposing
or conducting earth disturbance activities [must] develop,
implement and maintain BMPs [Best Management Practices]”
to “protect, maintain, reclaim and restore water quality and the
existing and designated uses of waters of this Commonwealth.”
25 Pa. Code § 102.2. A 105 permit is meant to “assure proper
2
and comment, PADEP issued Transco the permits, prompting
FERC’s authorization to break ground on the Project.
But progress on the Project was frustrated when a group
of outsiders3 (“Riverkeepers”) challenged PADEP’s decision
to issue the permits before Pennsylvania’s Environmental
Hearing Board (“Board”). The Riverkeepers argued that the
Permits did not satisfy the Commonwealth’s conditions for
certification. While that appeal was pending, Transco
completed construction of the Project, and gas began flowing
through the pipeline in 2024.
Soon after, the Board held a five-day session to consider
the appeal, hearing testimony of eleven witnesses, including
seven experts. After post-hearing briefing, the Board dismissed
Riverkeepers’ appeal, finding no evidence “that there has been
any actual environmental harm or degradation as a result of
Transco’s Project.” App. 102. Riverkeepers filed this petition
for review of the Board’s determination. We granted Transco’s
motion to appear as intervenor in support of PADEP and the
Board (together, “Pennsylvania”).
II.
planning, design, construction, maintenance, monitoring and
supervision of” dams and reservoirs for safety and for “water
obstructions and encroachments . . . to prevent unreasonable
interference with water flow and to protect navigation.” Id. §
105.2.
3
These are Citizens for Pennsylvania’s Future, Maya K.
van Rossum, the Delaware Riverkeeper, and Delaware
Riverkeeper Network.
3
We begin by setting the standard for our review.
Petitioners and Pennsylvania argue we must mirror the
standard used by the Pennsylvania appellate courts,4 while
Transco points to “arbitrary, capricious, an abuse of discretion,
or otherwise not in accordance with law” under 5 U.S.C. §
706(2)(A). Prior panel decisions provide only a hazy answer.
One stated that courts “review under the arbitrary and
capricious standard state action taken pursuant to federal law.”
Del. Riverkeeper Network v. Sec’y Pa. Dep’t of Env’t Prot.
(Riverkeeper I), 833 F.3d 360, 377 (3d Cir. 2016) (applying
that standard to PADEP permitting under the Clean Water Act
in a 15 U.S.C. § 717r(d)(1) petition); see also Nat. Res. Def.
Council, Inc. v. N.J. Dep’t of Env’t Prot., 2026 WL 2639510,
at *5 (3d Cir. Sept. 8, 2026) (same). Another looked “to [state]
law to determine the prism of our review of . . . [state]
administrative agency decisions.” Twp. of Bordentown v.
FERC, 903 F.3d 234, 270 (3d Cir. 2018). So we clear the air
and confirm that § 706 supplies the standard to review state
action in petitions brought under 15 U.S.C. § 717r(d)(1).
A.
“Arbitrary and capricious” is a familiar term of art
expressing the commonsense principle that where a “person
had power given to do a thing at his discretion, it is to be
understood of sound discretion.” Estwick v. City of London, 82
4
Which requires a court to affirm the Board’s decision
absent legal errors, or if “any finding of fact made by the
agency and necessary to support its adjudication is not
supported by substantial evidence.” Tire Jockey Serv., Inc. v.
Commonwealth, Dep’t of Env’t Prot., 915 A.2d 1165, 1185
(Pa. 2007) (quoting 2 Pa. C.S. § 704).
4
Eng. Rep. 515, 516 (KB) (1647).5 And when some authority
was given to “commissioners” their “proceedings ought to be
limited and bound with the rule of reason and law.” Rooke’s
Case, 5 Co. Rep. 99b, 100b (1598) (emphasis added); see also
R. v. Askew, 98 Eng. Rep. 139, 141 (KB) (1768). The principle
is manifest in the administration because an “executor, who
having a double trust put in him, both to have a part in the
legislative, and the supreme execution of the law, acts against
both, when he goes about to set up his own arbitrary will.” 2
John Locke, Two Treatises of Government 313 (J. Sheppard &
G. Nugent eds., 1779).
In the United States, courts have long understood that
“arbitrary and capricious” actions by non-federal actors under
“official authority” were “subject to the law’s correction.”
Merrill v. Humphrey, 24 Mich. 170, 173 (1871). So, when
Congress granted a railroad the authority to stake a line, whose
sections would “not be liable to sale, entry, or pre-emption . . .
except by the company,” the Supreme Court observed that “the
land department” did not need to “accept an arbitrary and
capricious selection of the line.” Buttz v. N. Pac. R.R. Co., 119
5
Cessante ratione legis cessat ipsa lex: “Reason is the
soul of the law, and when the reason of any particular law
ceases, so does the law itself.” Herbert Broom, A Selection of
Legal Maxims 129 (8th ed. 1911). Actions not grounded in
reason are not law, which is itself “the highest reason.” Marcus
Tullius Cicero, On the Republic on the Laws 317 (C. Keyes,
transl.); Thomas Aquinas, Summa Theologica, pt. I-II, q. 90,
art. 2 (Fathers of the English Dominican Province transl.,
Benziger Bros. 1947) (“[P]ractical reason . . . directed to the
last end which is the common good . . . has the nature of a
law.”).
5
U.S. 55, 72 (1886); see also Am. Sch. of Magnetic Healing v.
McAnnulty, 187 U.S. 94, 110 (1902) (retaining the power to
prevent “the absolutely uncontrolled and arbitrary action of a
public and administrative officer”). Congress placed those
principles into the Administrative Procedure Act (“APA”) not
as a novel feature, but as a “general restatement of the
principles of judicial review embodied in many statutes and
judicial decisions.” U.S. Dep’t of Just., Attorney General’s
Manual on the Administrative Procedure Act 93 (1947).
B.
As recognized by other courts, this same background
principle of judicial review applies to state agencies, even
though the APA does not. See 5 U.S.C. § 701(b)(1).6 The
Supreme Court gives “‘permitting authority’ considerable
leeway,” simply asking “whether the state agency’s . . .
determination was reasonable, in light of the statutory guides
and the state administrative record.” Alaska Dep’t of Env’t
Conservation v. EPA, 540 U.S. 461, 490, 494 (2004). And, as
mentioned, we have recognized this as the correct standard
when “review[ing] . . . state action pursuant to the Clean Water
Act.” Riverkeeper I, 833 F.3d at 377.7 That explains prior
6
See, e.g., Sierra Club v. W. Va. Dep’t of Env’t Prot.,
64 F.4th 487, 501 (4th Cir. 2023) (“[W]e review a state
agency’s CWA Section 401 certification decision under the
APA’s arbitrary and capricious standard.”); Const. Pipeline
Co. v. N.Y. St. Dep’t of Env’t Conservation, 868 F.3d 87, 100
(2d Cir. 2017) (“[I]f the agency correctly interpreted federal
law, we review its factual determinations under the arbitrary-
and-capricious standard.”).
7
See also Del. Riverkeeper Network v. Sec’y Pa. Dep’t
of Env’t Prot. (Riverkeeper II), 903 F.3d 65, 76 (3d Cir. 2018);
6
sentiments on “afford[ing]” state agencies “the deference they
would receive under state law,” Bordentown, 903 F.3d at 270,
as referring to “the traditional understanding of the judicial
function, under which courts must exercise independent
judgment in determining the meaning of” statutes and
regulations. Loper Bright Enters. v. Raimondo, 603 U.S. 369,
394 (2024). Some courts “seek aid from the interpretations of
those responsible for implementing particular statutes” in
exercising such judgment. Id. (citing Skidmore v. Swift & Co.,
323 U.S. 134, 140 (1944); United States v. Am. Trucking
Ass’ns, 310 U.S. 534, 549 (1940)). We merely acknowledged
this as permissible. But that relates to the scope of legal review,
which always fixes “the boundaries of delegated authority, an
inquiry that includes defining the range of permissible criteria.
In such an empowering arrangement, responsibility for
meaning is shared between court and agency.” Henry P.
Monaghan, Marbury and the Administrative State, 83 Colum.
L. Rev. 1, 27 (1983) (quoted in Loper Bright, 603 U.S. at 395).8
Accordingly, we review state agency actions taken
pursuant to Congressional authority under the arbitrary and
Del. Riverkeeper Network v. Sec’y Pa. Dep’t of Env’t Prot.
(Riverkeeper III), 783 F. App’x 124, 127 (3d Cir. 2019).
8
Even though Riverkeepers make faint attempts to
frame their arguments as interpretive questions, they really
attack actions taken within the authority granted to PADEP and
the Board. Nevertheless, we review “pure legal questions” de
novo. Dep’t of Env’t Prot. v. Cumberland Coal Res., LP, 102
A.3d 962, 970 (Pa. 2014); Mylan Inc. & Subsidiaries v.
Comm’r of Internal Revenue, 76 F.4th 230, 242 n.18 (3d Cir.
2023) (reviewing the interpretation of statutes and regulations
de novo).
7
capricious standard, at least where, as here, no legislative
directive or choice of law rule tasks us with adopting another
standard or borrowing the state’s standard.9
III.
On to the merits, and whether Pennsylvania arbitrarily
granted the 102 and 105 Permits. Then, we ask whether those
actions violated the Environmental Rights Amendment.
Finding Pennsylvania’s actions reasonable, and without
regulatory or constitutional concerns, we will deny the petition.
A.
The Clean Water Act requires states to maintain a
“statewide antidegradation policy.” 40 C.F.R. § 131.12(a); see
also 33 U.S.C. § 1313(d)(4)(B). Pennsylvania sets the
stringency of antidegradation rules against the affected body of
water with three classifications: “Exceptional Value,” “High
Quality,” and other. 25 Pa. Code § 93.4c.10 Pennsylvania
9
“Agency action is arbitrary and capricious when the
agency fails to ‘examine the relevant data and articulate a
satisfactory explanation for its action including a rational
connection between the facts found and the choice made.’”
Riverkeeper I, 833 F.3d at 377 (quoting Motor Vehicle Mfrs.
Ass’n of the U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463
U.S. 29, 43 (1983)). “The party challenging the agency
determination bears the burden of demonstrating prejudice,”
and “mistakes that have no bearing on the substantive decision
of an agency” are not prejudicial. Id. Factual determinations
are reviewed for clear error. Id.
10
The “other” category includes all waters, of which
existing and designated uses must be maintained and protected.
25 Pa. Code § 93.4a(a). For “High Quality Waters,” both uses
8
considered the Project to cross Exceptional Value or High
Quality watersheds.
An applicant seeking a 102 permit for “Exceptional
Value” or “High Quality” watersheds must satisfy both a
“technology-based” and a “quality-based” standard, if a
“nondischarge alternative” is not available.11 App. 127; 25 Pa.
Code § 102.1, 102.4(b)(6), 102.8(h).12 The technology-based
standard requires the applicant to adopt “the best available
combination of cost-effective treatment, land disposal,
pollution prevention and wastewater reuse technologies,” or
and quality must be maintained and protected, unless the
Department finds that allowing lower water quality is
necessary to accommodate important economic or social
development in the area in which the waters are located. Id. §§
93.4a(c), 93.4c(b)(1)(iii). For “Exceptional Value Waters,” the
water quality of the waters must be maintained and protected,
no exceptions. Id. § 93.4a(d).
11
Nondischarge alternatives are “[e]nvironmentally
sound and cost-effective” best management practices, or
“BMPs,” that “eliminate the net change in stormwater volume,
rate and quality for storm events up to and including the 2-
year/24-hour storm when compared to the stormwater rate,
volume and quality prior to the earth disturbance activities.”
Id. §§ 93.4c(b)(1)(i)(A), 102.1.
12
For High Quality waters, PADEP may “allow a
reduction of water quality” if “allowing lower water quality is
necessary to accommodate important economic or social
development in the area in which the waters are located.” Id. §
93.4c(b)(1)(iii).
9
“ABACT.” 25 Pa. Code § 93.4c(b)(1)(i)(A).13 Pennsylvania
maintains a manual delineating “nondischarge alternatives and
ABACT . . . design standards.” Id. § 102.4(b)(6)(iii). By
contrast, the quality-based standard, as one might suspect, is
open-ended, merely requiring the applicant to demonstrate that
the discharge will “maintain and protect the existing quality of
receiving surface waters.” Id. § 93.4c(b)(1)(i)(B).
Riverkeepers argue PADEP did not require a separate
demonstration for the water quality-based standard before
issuing the 102 Permit. They first claim that the regulations
compelled Transco to produce specific data for PADEP’s
consideration including pre- and post-construction in-stream
water quality tests.14 True, PADEP has required such sampling
for other projects. But Riverkeepers point to no provision that
compels the production of this data in every case.15 Rather, as
the Board recognized, ordering specific data for a given project
“is a matter within [PADEP]’s reasoned discretion using its
best professional judgment.” App. 128. Failing to require
13
This stands for “[a]ntidegradation best available
combination of technologies.” Id. § 102.1.
14
During PADEP’s review, Riverkeepers could have
“provide[d] . . . additional information . . . regarding existing
use protection for the surface water[s]” but did not. Id. §
93.4c(a)(1)(iii).
15
They argue that 25 Pa. Code § 93.4c(a)(1)(i) compels
in-stream sampling data, but that provision merely says
“[PADEP]’s evaluation of information” may include certain
types of data, like “data gathered at [PADEP]’s own initiative.”
10
certain data is not a legal error, as Riverkeepers would have
it.16
Riverkeepers also claim PADEP skipped the step of
screening the Project for effects on water quality by relying
exclusively on ABACT, but the record tells a different story.
As the Board recognized, PADEP reviewed extensive
information about water resources and site conditions
(including water quality information, flow type, stream depth,
substrate type, slope, the types of riparian vegetation and
aquatic organisms present, and the geometry of streams,
among other characteristics) before concluding water quality
would be sufficiently protected with the 102 Permit. Not only
that, but the permit required ABACT BMPs and “restoration to
meadow in good condition.” App. 89. The Board
acknowledged that these protective BMPs are designed to
result “in little to no increase in the rate and volume of
stormwater runoff.” Id.
So PADEP considered water quality information, just
not the kind that Riverkeepers wanted. The Board rejected
Riverkeepers’ expert’s opinion “that more baseline data was
required” because the data he advocated for was “excessive, a
search for knowledge for knowledge’s sake alone, without
adding any practical value.” App. 143.17 It instead credited
16
Nor was the choice to not require that information
irrational given the extensive amount of data already at
PADEP’s disposal. See infra pp. 11–13.
17
The Board discredited both of Riverkeepers’ experts,
noting “[t]he design of control measures is largely an
engineering function, yet . . . [Riverkeepers] presented the
testimony of two ecologists, neither of whom was qualified to
opine on the design of BMPs.” App. 130.
11
Transco’s experts, who “explained why pre- and post-
construction in-stream sampling was not reasonable for this
Project.” App. 131. It also made factual findings that the nature
of the construction project would not affect water quality. And
the Board found the utility line and pipeline crossings used “in
the dry” construction, which briefly diverts water flow from
the construction area during excavation. App. 132. As the
Board explained, “[w]orking ‘in the dry’ means there will be
no major change to the shape of the stream after pipeline
installation and that there will be no extra sediment.” Id.
Finally, it noted that by complying with Chapter 102, the
permits already required lots of information regarding pre- and
post-construction site conditions.18 “We will not reevaluate the
[Board]’s credibility determinations or reweigh this evidence.”
Leatherwood, Inc. v. Commonwealth, Dep’t of Env’t Prot., 819
A.2d 604, 612 (Pa. Commw. Ct. 2003). Supported by a record
replete with factual findings, and no evidence from
Riverkeepers that their preferred water quality information
18
See, e.g., 25 Pa. Code §§ 102.4(b)(1)–(9) (extensive
environmental and safety plans pre-construction), 102.6(a)(2)
(data from Pennsylvania Natural Heritage Program),
102.8(f)(1)–(15) (extensive site data and features),
102.8(g)(1)–(6) (site data), 102.8(h) (considerations, including
manuals, on complying with antidegradation requirements).
Riverkeepers do not argue that the Project falls out of
compliance with these requirements, or the many forms,
checklists, and manuals designed to facilitate regulatory
requirements.
12
would have altered the outcome, we cannot say Pennsylvania’s
decision to issue the 102 Permit was arbitrary and capricious.19
B.
We turn next to the 105 Permits. Chapter 105 regulates
disturbances in water resources like dams and reservoirs. It
lays out a fact-bound decision tree, where the PADEP is given
great discretion at each branch to make determinations on
broad terms. For instance, permits will not issue for
19
Since the 102 Permit was properly issued, the Board
did not err in finding the corresponding requirements of the
105 Permits met.
Riverkeepers’ argument regarding the burden the Board
imposed on them below also fails. It was Riverkeepers’ burden
in bringing its third-party challenge to show by a
preponderance of the evidence that “[PADEP] acted contrary
to the law or unreasonably or that its decision is not supported
by the facts.” Gibraltar Rock, Inc. v. Pa. Dep’t of Env’t Prot.,
286 A.3d 713, 718 (Pa. 2022); 25 Pa. Code § 1021.122(c)(2).
Riverkeepers argue that the Board heightened this burden,
asking them to affirmatively prove that environmental harm
would result from issuing the Permits, not just that the process
was insufficient to evaluate the effects. But where
Riverkeepers attack open-ended standards, like the quality-
based standard, which is designed to ensure against
environmental harm, the unreasonableness of the Board’s
conclusion would turn on the existence of some environmental
risk posed by the Permits. See, e.g., Leatherwood, Inc., 819
A.2d at 612 (noting the lack of credible evidence presented by
a third party establishing “the risk of bird/aircraft collisions
posed by [a] Landfill”). So we reject Riverkeepers’ claim that
the Board improperly heightened its burden.
13
Exceptional Value (“EV”) waters if there is an “adverse
impact,” “impairment,” or a “diminution of resources
sufficient to interfere with their uses.” 25 Pa. Code §
105.18a(a)(1), (5)–(6). For non-EV waters,20 the project must
not create a “major impairment” or a “significant adverse
impact.” Id. § 105.18a(b)(1), (6). The cumulative effect of the
project and other projects may not result in “impairment” of
the resource. Id. § 105.18a(a)(6). Before issuing a 105 permit,
PADEP must “consider[] the impact of the wetlands values and
functions in making a determination of adverse impact.” Id. §
105.14(b)(13). A project may “[r]ectify the impact by
repairing, rehabilitating or restoring the impacted
environment,” thus resulting in no adverse effect. Id. §
105.1(i)(B); see id. §§ 105.14(c)(2), 105.16(a). The regulations
then establish several ways by which permits may still issue
even if the project would impose adverse effects. See, e.g., id.
§§ 105.16, 105.18a. As the Board rightly noted, “[a]ll of these
imprecise terms obviously leave a great deal of room for the
exercise of reasonable discretion.” App. 138.
PADEP found that the Project would impose no
permanent adverse effects to wetland functions or values. To
make that so, it put in place mitigation requirements in the 105
Permits, including “conditions regarding restoration.” App.
144. Those conditions accounted for temporary “impacts” and
permanent “impacts,” like the “change in vegetation” from
mowing the pipeline right-of-way. App. 143.
Unsatisfied, Riverkeepers say that PADEP did not
properly account for the time it takes to restore natural
resources. But as the Board explained, the “record is replete
20
For purposes of § 105, there are only two categories
of wetlands. See 25 Pa. Code § 105.17.
14
with evidence that Transco must obtain full restoration within
a reasonable period of time, and extensive monitoring is
required to ensure that happens.” App. 146. Riverkeepers point
to no legal basis for their argument that “a reasonable period”
is not a permissible period. Moreover, Riverkeepers offer no
evidence that permanent effects were erroneously classified as
temporary. Rather, the Board discredited Riverkeepers’ expert
testimony regarding temporary and permanent effects. It was
reasonable to do so, given that the expert’s testimony lacked
any specific examples, was based on a partial and hasty review
of the record, and lacked any site visits.
We also find no error in the Board’s treatment of
permanent effects. The regulations provide that projects must
not create “adverse impact[s],” which implies that some
“impact[s]” are permissible. 25 Pa. Code § 105.18a(a)(1). All
parties agree that an “impact” is adverse when the functions
and values of wetlands are not maintained.21 “Functions and
values that are physically and biologically the same as those
that are lost shall be replaced at a minimum ratio of 1:1.” Id. §
105.20a(a)(2).
The Board determined that the Project would impose
“no loss of hydrology or biogeochemical processes,” even
though there will be a “change in the type of vegetation
growing in the wetland.” App. 97. The permanent “impact”
was limited to the vegetative change due to mowing the narrow
area “immediately above the pipeline right-of-way” about
every three years, which is needed for pipeline integrity, as
well as for FERC inspections. App. 148. That constitutes a
21
Chapter 105 provides a non-exhaustive list of wetland
functions, mostly concerning ecology and hydrology. Id. §
105.1.
15
permanent change “because you can’t plant trees on top of
where the pipeline is located.” App. 1201. Yet the Project
mitigates for that mowing with offsite replacements at a ratio
greater than the minimum one-to-one required by the
regulations.
Waving all this away, Riverkeepers object that “the
Permits do not ensure that the functions and values of wetlands
are restored.” Opening Br. 34. But it directs our attention to
nothing specifically lacking and simply complains that the
performance standards in the mitigation plans are insufficient.
We cannot upset the Board’s contrary conclusion. During the
Board’s adjudication, Transco presented many “witnesses
explain[ing] why this functional conversion would not result in
any adverse impact,” while Riverkeepers “offered no contrary
evidence.” App. 144. Riverkeepers’ wetland expert did not
even state an opinion on whether the Project would have an
adverse effect.
Riverkeepers finally argue that PADEP did not account
for cumulative effects, that is, effects from the Project and prior
projects becoming adverse in the aggregate. “In evaluating the
cumulative impact,” PADEP is tasked to “consider whether
numerous piecemeal changes may result in a major impairment
of the wetland resources.” 25 Pa. Code § 105.14(b)(14). Here,
PADEP considered Transco’s cumulative effects analysis,
which included assessments of previously constructed
pipelines around the Project. “[M]ost of the Project collocated
the new pipelines with preexisting pipelines,” which even
Riverkeepers’ experts admitted, comes with environmental
efficiencies. App. 149.
Still, Riverkeepers latch onto the co-located pipeline
portions, noting that the Project expanded the right-of-way in
these areas and now clears out more vegetation on a routine
16
basis. But the record supports a finding that the Project
mitigates “the creeping out of the right-of-way over time.”
App. 1324. Transco’s applications acknowledged and
accounted for those cumulative effects, and experts found that
the Project “is not expected to have a negative cumulative
impact to wetland resources as a whole.” App. 1313. As one
witness testified—agreeing with Riverkeepers—most of the
effect associated with the collocated pipelines is the “cutting of
vegetation,” which is not an adverse “impact.” App. 1325.
Neither is the accumulation of this cutting because “any
impacts were mitigated for, and so when we look at all those
together, it would not constitute an impairment to resources.”
App. 1312. Crediting this testimony, the Board could
reasonably conclude there were no cumulative adverse effects.
C.
Failing to establish a regulatory error, Riverkeepers
lodge a constitutional claim under Pennsylvania’s
Environmental Rights Amendment (“ERA”). The Amendment
imposes on state agencies, “[a]s trustee,” the duty to “conserve
and maintain” the Commonwealth’s “public natural
resources,” including “pure water.” Pa. Const. art. I § 27; see
Pa. Env’t Def. Found. v. Commonwealth, 161 A.3d 911, 931
n.23 (Pa. 2017). The Pennsylvania Supreme Court applies
ordinary trust principles when evaluating state actions under
the Amendment, asking whether the agency acted reasonably
“to accomplish the trust’s purposes” by giving “all of the
beneficiaries due regard for their respective interests in light of
the purposes of the trust.” See Pa. Env’t Def. Found., 161 A.3d
at 932–33.
We see no daylight between Riverkeepers’ regulatory
and constitutional arguments, and so they resolve the same
way. Riverkeepers argue PADEP failed its constitutional
17
duties by “not using easily ascertainable information about
water quality” in its review, Opening Br. 40–42; “failing to
ensure . . . the Project . . . did not require adequate post-
construction monitoring,” Opening Br. 43–44; and “treating
newly-planted saplings as equivalent in environmental value to
mature forest in its determination that deforestation impacts in
the construction right-of-way [were] ‘temporary,’” Opening
Br. 44. These merely repackage their prior arguments under a
constitutional veil.22
Taken together, Riverkeepers ask us to find that the
Amendment sets more granular requirements than the
regulations. Or that even if PADEP and the Board acted
reasonably under the regulations, they acted unreasonably
under the “broad and flexible terms” of the ERA. Robinson
Twp., Washington Cnty. v. Commonwealth, 83 A.3d 901, 963
(Pa. 2013) (plurality opinion). We decline that innovation
because, by design, the Amendment obliged complementary
legislation to fill in “administrative details” because “the
generalized terms comprising the [Amendment] do not
articulate them.” Id. at 958. The General Assembly did just
that, eventually leading to Chapters 93, 102, and 105 of the
22
The Board has consistently rejected ERA challenges
that simply reframe alleged regulatory violations. See, e.g.,
App. 150; Liberty Twp. v. PADEP, No. 2021-007-L, 2024 WL
202006, at *62–63 (Pa. Env. Hrg. Bd. Jan. 8, 2024); Del.
Riverkeeper Network v. PADEP, Nos. 2021-108-L, 2021-109-
L, 2022 WL 1200101, at *22 (Pa. Env’l. Hrg. Bd. Apr. 1,
2022); Ctr. for Coalfield Just. v. PADEP No. 2014-072-B,
2017 WL 3842580, at *34 (Pa. Env’l. Hrg. Bd. Aug. 15, 2017).
18
Environmental Code.23 See Robinson, 83 A.3d at 958. That is
why the purpose of the Amendment, to “conserve and
maintain” the Commonwealth’s resources, tracks the purposes
contained in the relevant water regulations. Compare Pa.
Const. art. I § 27, with 25 Pa. Code §§ 102.2, 105.2.
While “complementary legislation” does not totally
alleviate constitutional duties, “legislative enactments serve to
define regulatory powers and duties, to describe prohibited
conduct of private individuals and entities, to provide
procedural safeguards, and to enunciate technical standards of
environmental protection.” Robinson, 83 A.3d at 958.
Complying with the exhaustive regulatory schemes
promulgated following the Amendment’s passage almost
always meets a trustee’s duty to act reasonably. Hetherton v.
Sears, Roebuck & Co., 593 F.2d 526, 531 (3d Cir. 1979)
(“When a legislature has enacted regulations which define the
standard of care to be exercised in a particular situation, an
individual’s compliance with the statute normally absolves him
of any need to take additional precautions absent any special
circumstances . . . .”).
Riverkeepers identify no special circumstances, only
the ordinary balancing of preservation and progress. In
response, Pennsylvania exercised reasoned discretion
according to its “duties to conserve and maintain” the
environment, which “are tempered by legitimate development
23
The Amendment was ratified on May 18, 1971. Pa.
Env’t Def. Found., 161 A.3d at 918. “The General Assembly”
then “enacted environmental statutes, most notably the Clean
Streams Act,” Robinson, 83 A.3d at 958, which is the main
statutory authority for the regulations at issue, see 25 Pa.
Code §§ 93, 102, 105 (2026).
19
tending to improve upon the lot of Pennsylvania’s citizenry.”
Robinson, 83 A.3d at 958. PADEP considered extensive water
quality data, the exact data Riverkeepers claim was
unconstitutionally ignored. The Permits contain a host of
monitoring requirements, which the Board scrutinized and
found sufficient. And the Board reasoned “the wetland
replacement ratios used for the Project factor in the time it
takes for trees to grow, which is why certain ratios are higher
than one to one.” App. 152. Pennsylvania’s broadly-worded
Amendment does not create more granular requirements on
pipeline projects than the Commonwealth’s extensive
environmental regulations and the Board fulfilled its
constitutional charge.
* * *
For the foregoing reasons, we will deny the petition.
20
Counsel for Petitioners
Devon E. Guyer
Kacy C. Manahan
DELAWARE RIVERKEEPER NETWORK
Jessica R. O’Neill
Emma H. Bast
CITIZENS FOR PENNSYLVANIA’S FUTURE
Counsel for Respondent
Michael Braymer
Margaret O. Murphy
Michael J. Scarinci
COMMONWEALTH OF PENNSYLVANIA, DEPARTMENT OF
ENVIRONMENTAL PROTECTION
Counsel for Intervenor
Andrew T. Bockis
John R. Dixon
Patrick F. Nugent
Elizabeth U. Witmer
SAUL EWING LLP
21