HARRISBURG – Recently, the Supreme Court of Pennsylvania issued a decision approving a move from members of the public and environmental advocacy groups to seek legal costs reimbursement, in a pair of prominent ecological lawsuits.
On Feb. 22, the state Supreme Court handed down the consolidated decision in the Clean Air Council Et.Al v. DEP Et.Al and Gerhart v. DEP Et.Al cases. Justice David N. Wecht authored the Court’s ruling in these matters, which reversed a 2020 ruling from the Commonwealth Court of Pennsylvania.
That earlier Commonwealth Court ruling, some may say, served to shut non-profit groups and citizens out of being able to seek reimbursement of their legal costs expended in environmental lawsuits. But with the new ruling, such fee reimbursement can be sought not only from the Commonwealth of Pennsylvania, who issued permits for environmental activities opposed by plaintiffs, but from the companies receiving the permits and profiting off said activities.
“In Clean Air Council, we could conclude that the Board correctly denied relief because objectors settled with DEP and did not substantially prevail on their appeals of Sunoco’s permits. But precisely out of deference to the Board’s discretion, we decline to do so. Sunoco claims that the modest adjustments to permits and/or practices embodied in the stipulated orders entered into long before objectors’ claims were finally litigated could not be deemed prevailing on the merits,” Wecht said.
“But because Sunoco made adjustments to its permits as part of the negotiated agreements, and should not have enjoyed the protection of the per se bad-faith standard, we will not take for granted that the Board would rule the same way in the wake of our review of the bad-faith rule. It is not our place to usurp the Board’s superior position in the first instance to review the record in light of the guidance we have provided here. Accordingly, we vacate the Commonwealth Court’s ruling in Clean Air Council, and we remand for further Board proceedings consistent with this opinion.”
The decision is considered a victory for both citizens and environmental organizations, who had previously sought and been denied reimbursement for legal costs from Sunoco Pipeline, the builder of the controversial Mariner East pipelines.
Stephen and Ellen Gerhart are property owners from Huntingdon County who challenged a wetlands determination on their property, where Sunoco was mandated to remediate such forested wetland, disturbed during construction of the Mariner East 2 Pipeline.
The original decision from the state’s Environmental Hearing Board denied a trio of groups, namely the Clean Air Council, Mountain Watershed Association and the Delaware Riverkeeper Network, from requesting that Energy Transfer compensate parties for their legal fees, connected to an appeal of the issuance of Sunoco’s Mariner East 2 Pipeline permits.
In March 2022, the groups petitioned the Supreme Court of Pennsylvania to overturn the lower court ruling, which made all-but-impossible the hope of citizens or advocacy groups to receive compensation for legal expenses from the permit holder, when appealing a DEP permit.
With the new state Supreme Court ruling, the Gerharts won a fee award from DEP, but not Sunoco itself.
Rich Raiders, counsel for the Gerharts, concurred with the ruling.
“Today’s opinion shows that Pennsylvanians who enforce the Clean Streams Law have a voice and that applicants who submit faulty permit applications to DEP can be held responsible for their sloppy or incompetent work,” Raiders stated.
Environmental organizations also hailed the state Supreme Court’s ruling.
“[This] ruling from the Supreme Court of Pennsylvania is a huge win for the public. Too often, when members of the public have been harmed by big polluters, they are unable to afford legal support. [This] ruling makes it easier for the public to be compensated for their legal costs when their lawsuits are successful. This opens the door for the public to finally have their day in court and for justice to be restored,” Joseph Minott, Executive Director and Chief Counsel of the Clean Air Council, said.
“We are pleased with the decision for two reasons. Not only does it remedy a bad standard, but it also clarifies, for the first time, that it is the permittees – often exploitative industries, such as mining and fracking – and not just the taxpayers, who should bear the financial burden when environmental groups bring protective lawsuits,” Melissa Marshall, Community Advocate with the Mountain Watershed Association, stated.
Kacy Manahan, Senior Attorney for the Delaware Riverkeeper Network, agreed.
“Today’s decision appropriately recognizes the significant role that citizen objectors play in the vindication of environmental rights and the General Assembly’s laws protecting the public natural resources. This ruling helps support legal action against bad permitting decisions, and holds accountable the parties who stand to benefit financially from those decisions,” Manahan said.
Supreme Court of Pennsylvania cases 73 MAP 2021 & 74 MAP 2021
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com