Litigation Challenges Before the Pa. Environmental Hearing Board

The Legal Intelligencer

(by James Corbelli)

Pennsylvania employs a unique judicial mechanism to resolve legal disputes which arise from final decisions made by the Pennsylvania Department of Environmental Protection (DEP or department). The Environmental Hearing Board (EHB or board) has been hearing appeals from department decisions for almost 50 years. During that time, the EHB has had the exclusive authority to hear and decide appeals from DEP actions. This article will summarize what can be expected in EHB legal proceedings, and highlight certain unique features of EHB litigation. While matters before the board are similar in many ways to matters litigated in state and federal courts, there are written and unwritten aspects of litigation in front of the Board that can only be fully appreciated through experience in matters before the Board.

An initial limitation of the board is that it has limited jurisdiction, as the board can only consider final actions of the department. As a general matter, the department’s issuance of an order, permit or any other DEP final action can be appealed to the board. The DEP action must be a “final” action, which has been the subject of substantial EHB case law.

The final actions before the board can be quite varied and address a wide range of environmental matters, such as DEP decisions that involve oil and gas rights, landfills, mining of coal and noncoal minerals, dams and encroachments, air, drinking water, storage tanks, stormwater management and more. The EHB can hear actions commenced by the DEP, a member of the regulated community, individuals or citizens groups. Matters that are brought before the EHB may involve an appeal of a permit denial, permit approval, order by the DEP for an operator to take a certain action, a penalty assessment for an alleged violation of law, etc. The board sees its role, essentially, as “a buffer between the regulators and the regulated, providing all citizens a forum where they can challenge the actions of the department and receive judicial-like relief.”

The EHB is independent from the DEP. The administrative law judges are appointed by the governor and, after Senate confirmation, have six-year terms. There are currently five EHB judges, and there have been only 24 since the Board’s inception. The judges have considerable subject matter experience, either from prior positions with the department, handling environmental legal matters in the private sector, through years of overseeing cases before the Board, and often a combination of each. As a result, it can be expected by litigants before the Board that the judges will understand and have had substantial experience with similar fact issues, as well as the pertinent environmental statutes and regulations. In contrast, while a state or federal court judge may only rarely hear cases that are governed by an environmental law, the Board only considers matters that are governed by Pennsylvania environmental statutes and regulations. In addition, the board is supported by an experienced staff that equally has considerable experience with Pennsylvania’s environmental laws and the unique characteristics of EHB practice.

The EHB is not part of Pennsylvania’s judicial system, yet in almost every way, the board acts like a court. While the board generally follows the Pennsylvania Rules of Civil Procedure, it also has its own rules, and has developed and regularly updates a detailed practice manual, with citations to opinions, that any practitioner before the Board must regularly consult.

A matter before the board is generally commenced through a notice of appeal, which acts to challenge an action by the DEP and is in some ways similar to a complaint. While there is generally no equivalent to an answer, the progress of an appeal before the EHB proceeds much like a case pursued in state or federal court, although often at a quicker pace. A single EHB judge will be assigned with primary responsibility for each appeal. The board, through the assigned judge, requires that the parties engage in some effort to discuss early settlement and report to the board that such an effort has been made. Of course, many state courts do not require such efforts. Throughout an EHB proceeding, the Board may seek to promote settlement discussions, but there is typically no additional formal process or requirement for the parties to seek an agreed resolution in a case.

Discovery can be robust in matters before the EHB. The board requires that the parties consider electronic discovery issues early in the case, and develop a plan to address electronically stored information. Written discovery is permitted, and generally the Pennsylvania Rules of Civil Procedure apply to the methods and types of discovery. It can also be expected that parties will engage in fact depositions of parties and non-parties. The board will set a pre-hearing discovery schedule at the inception of an appeal, which establishes most pre-hearing deadlines, such as the close of fact discovery and the filing of summary judgment motions. It is generally expected that expert reports will be provided during the fact discovery period, although the EHB rules do not make it clear when expert reports are to be exchanged. Expert depositions are not to be expected in matters before the EHB.

Although the EHB does not conduct what it calls a trial, the Board holds fact hearings, which are in every meaningful way a bench trial. Juries are not available in matters before the board. The EHB does require pre-hearing submissions, which are detailed pleadings which set forth the proposed key facts and legal theories expected to be presented and relied upon at the hearing, the witnesses to appear at the hearing and the documents to be introduced as evidence at the hearing. Parties also have the ability to file motions in limine. The hearing itself is a bench trial before the judge assigned to the appeal. EHB judges are experienced trial judges, with vast experience handling evidence and expert issues. The Pennsylvania Rules of Evidence will typically, but not always, apply and the trial lawyer must be prepared to take the proper steps to introduce evidence, present testimony through witnesses and develop a case theory like they would in any court. Depending on the nature of the appeal, it is common for the judge to request or agree to a site visit. Finally, matters before the board are almost always complex and require expert testimony. As a result of the nature of the disputes before the EHB, a variety scientific disciplines are typically behind the DEP’s final action and need to be evaluated by the board. As a result, expert testimony and the quality of the expert opinions often are the most critical advocacy components of an EHB appeal.

One of the unique features before the EHB is that it hears cases in a de novo capacity. As a result, the Board renders decisions based on evidence presented at the hearing, and is not limited to facts considered by the DEP when the Department decided the final action under appeal. By way of example, if the DEP failed to consider information that the EHB later considered pertinent, the board could consider new evidence at the hearing that had not been before the DEP and then substitute its own discretion for the department’s. The board can also remand the matter back to the department for the department to take additional action. As a result of the de novo nature of EHB appeals, creative lawyering opportunities exist to address possible weaknesses in final actions made by the department.

Following a hearing, parties to an appeal will be required to submit post-hearing briefs, which will include arguments of the parties based on the evidence presented. The board then prepares a detailed adjudication, which sets forth the ruling of the board, including the factual findings and legal conclusions reached by the board. EHB adjudications, which are often quite lengthy and detailed, are determined by all five EHB judges, although an adjudication need not be unanimous. Decisions by the EHB may be appealed to the Commonwealth Court.

In sum, the EHB provides a critical judicial function in important environmental matters in the commonwealth. There is often much at stake for the regulated community, the department and other interested parties. While appeals before the board are frequently complex, the most effective advocacy is found in the presentation of understandable and straightforward fact and expert evidence. Even within the framework of detailed and often convoluted Pennsylvania environmental laws and regulations, the trial lawyer’s role is to present a compelling a story. Classic trial skills, in conjunction with a thorough understanding of the underlying environmental laws and an awareness of the distinctive practice and procedural rules of the board, written and unwritten, are critical in advocating before the EHB.

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Reprinted with permission from the May 7, 2020 edition of The Legal Intelligencer© 2020 ALM Media Properties, LLC. All rights reserved.