Pittsburgh, PA and Washington, DC
FNREL Mineral and Energy Law Newsletter
Pennsylvania – Mining
(By Joseph Reinhart, Sean McGovern, Gina Falaschi Buchman and Christina Puhnaty)
On February 22, 2023, the Pennsylvania Supreme Court vacated and remanded a Pennsylvania Commonwealth Court decision affirming the Environmental Hearing Board’s (EHB) denial of legal fees to parties challenging environmental permits issued by the Pennsylvania Department of Environmental Protection (PADEP). Clean Air Council v. PADEP, Nos. 73 MAP 2021, 74 MAP 2021, slip op. (Pa. Feb. 22, 2023). In separate suits, environmental groups and landowners challenged permits issued to Sunoco Pipeline, L.P., for the Mariner East 2 pipeline and later sued for legal fees. The EHB ruled that the environmental groups and landowners could not compel reimbursement of their legal fees because such reimbursement is allowed only in cases in which a party’s bad faith in challenging or defending a PADEP permit is established and no such bad faith occurred. The commonwealth court affirmed. The supreme court disagreed, concluding that the bad-faith standard was incompatible with the Pennsylvania Clean Streams Law and that the EHB has taken an overbroad reading of applicable case law to support its position.
Section 307(b) of the Clean Streams Law, 35 Pa. Stat. § 691.307(b), provides that upon the request of any party, the EHB “may in its discretion order the payment of costs and attorney’s fees it determines to have been reasonably incurred by such party in proceedings pursuant to this act.” The supreme court concluded that the Clean Streams Law “neither limits nor guides the [EHB’s] discretion,” but that the EHB has “opted on its own to cabin that discretion.” Clean Air Council, slip op. at 2. It is possible that the supreme court’s decision could result in permittees not only paying to defend legal challenges to their permits, but also paying the legal expenses incurred by the parties challenging their permits. It is yet to be seen, however, how the EHB will apply the supreme court’s decision.
Copyright © 2023, The Foundation for Natural Resources and Energy Law, Westminster, Colorado
