On March 18, the Clean Air Council, Mountain Watershed Association, and the Delaware Riverkeeper Network petitioned the PA Supreme Court to take up an appeal of a Commonwealth Court decision denying attorneys fees in the groups’ successful challenge to a Mariner East Pipeline Permit.

If successful, the appeal will overturn a split decision by the Commonwealth Court which makes it nearly impossible for someone successfully appealing a permit issued under the Clean Streams Law to get reimbursed by the permittee for their legal expenses.

In its decision, Commonwealth Court affirmed the Environmental Hearing Board’s decision that denied the groups’ request for attorney’s fees and costs stemming from a legal appeal of Sunoco’s Mariner East 2 pipeline permits.  Read EHB Case Docket.

In its decision, the Board raised the bar for having permit recipients, also known as permittees, pay legal fees after a successful challenge to an environmental permit.

In addition to the normal standard for showing that an appellant should be awarded fees from another party, the appellant must also show that a permittee acted in “a dilatory, obdurate, or vexatious way”--a high bar that would be extremely difficult to prove.

This essentially limits permittees from ever having to pay legal fees, leaving only the state-funded Department of Environmental Protection to cover costs when permit challenges are successful.

The Hearing Board has acknowledged that its practice places a burden on the taxpayer and has even cited this burden as justification for continuing its trend of awarding very small amounts of legal costs, if any.

“Fee shifting” provisions such as the one under the Clean Streams Law exist in order to incentivize individuals or groups to bring cases that stop discriminatory behavior, achieve improved access, or protect a natural resource--all goals that are in the public interest but that may not result in a financial award.

Legal experts, fees, and other costs necessary for these cases can easily reach tens or hundreds of thousands of dollars, and the cases can go on for years or even decades, making appeals like this out of reach for most absent the ability to recoup costs.

Melissa Marshall, Community Advocate with the Mountain Watershed Association, commented that, “without fee shifting provisions, attorneys would only be able to take ultra-wealthy clients. Removing fee shifting provisions - or severely restricting them as the court has done here - quickly leads to a scenario where everyone but the uber-rich is de facto stripped of their rights. The communities who are the most impacted by polluting activity are left without any way to gain representation, and hence, without a way to enforce the laws when they are violated by the acts of private industry or government during permitting.”

“Having clean water to drink in Pennsylvania is not a given,” said Joseph Otis Minott, Executive Director and Chief Counsel of Clean Air Council. “The Clean Streams Law only works if the public can enforce it, and the public can’t enforce it if they’re driven into bankruptcy appealing permits for industrial projects that pollute our streams and rivers. We’re not going to sit aside and watch as the laws protecting our drinking water are hollowed out.”

Click Here for a copy of the petition to the PA Supreme Court.

[Posted: March 18, 2021]

3/22/2021