Pennsylvania Record

Sunday, October 20, 2019

Court doesn't give Sierra Club credit for redesign of Lackawanna Co. power plant


By Karen Kidd | Jun 19, 2019

HARRISBURG – A Lackawanna County power plant was redesigned after the Sierra Club filed a lawsuit, but that doesn't mean the lawsuit triggered the redesign or that the environmental group is entitled to fees from the state Department of Environmental Protection, Pennsylvania's Commonwealth Court recently ruled.

In its 18-page opinion issued June 11, the intermediate appellate court said it found the Pennsylvania Environmental Hearing Board (EHB) did not abuse its discretion when it denied the Sierra Club's application for fees and costs and affirmed the board's decision.  

"Upon our review of the EHB’s decision and the evidentiary record, we conclude that substantial record evidence supports the EHB’s factual findings with respect to the causation requirement," the opinion said. 

"Specifically, the EHB concluded that the Sierra Club’s only evidence on the causation element was the relative timing of events – i.e., that Lackawanna Energy Center redesigned its facility and sought modification and termination of the challenged permits after the Sierra Club filed its appeals but before a ruling on the merits. The EHB considered the Sierra Club’s timing argument, noting expressly that relative timing can support a finding of causation, particularly in the absence of any other reasonable explanation."

Judge Kevin Brobson wrote the 18-page opinion in which fellow judges Hannah Leavitt, Robert Simpson, Patricia A. McCullough, Michael H. Wojcik, Christine Fizzano Cannon and Ellen Ceisler concurred.

The Sierra Club appealed the EHB's decision about the fees and costs after Chicago-based Invenergy LLC redesigned the natural gas-fired Lackawanna Energy Center in the Borough of Jessup, according to the background portion of the Commonwealth Court's opinion. 

The Sierra Club claimed that its lawsuit had been the catalyst for the redesign and that the club was entitled to fees and costs under Pennsylvania's Clean Streams Law

"Generally, the Sierra Club complains that the EHB took a far too narrow approach at applying precedent from the Pennsylvania Supreme Court and this court analyzing and applying the fee/cost shifting provision of the Clean Streams Law," the Commonwealth Court said in its June 11 opinion.

In making its decision about whether the Sierra Club was entitled to the fees, the EHB was also "entitled to give greater weight to" expert testimony, rather than "the temporal relation" between the Sierra Club’s lawsuit and the power plant's redesign, the opinion said.

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