Delaware Riverkeeper Network, et al. v. Secretary, Pennsylvania Department of Environmental Protection, et al.

Section 401 of the Clean Water Act requires an applicant for an interstate natural gas pipeline project to obtain “a certification from the State in which the discharge . . . will originate . . . that any such discharge will comply with” that State’s water-quality standards. 33 U.S.C. § 1341(a)(1). The Clean Water Act leaves the states with primary responsibility to regulate such discharges based on the state’s individual water quality standards. Each state has its own unique state defined administrative process for the issuance and review of any such water quality certifications. The Third Circuit ruled that despite the fact that Pennsylvania’s administrative review process was not complete, and therefore not “final” pursuant to state law, Section 717r(d)(1) of the Natural Gas Act required an appeal of a water quality certificate to be heard directly by the Third Circuit Court of Appeals. In doing so, the Third Circuit discarded Pennsylvania’s statutory definition of finality, and instead inserted its own federal standard of finality.

1. May a federal court preempt a state’s administrative review process by substituting a federal finality standard for a state finality standard, where the state finality standard is clearly defined by state law?

2. Whether the federal court’s preemption of the Pennsylvania Environmental Hearing Board’s state administrative review process violates the Tenth Amendment?