On March 10, the PA Supreme Court heard oral argument in two cases challenging lower court decisions that shielded Sunoco Pipeline, LP from paying attorneys fees where public interest groups and land owners won legal victories related to Sunoco’s water permits for the Mariner East Pipeline Project.

The Gehart family, represented by Attorney Rich Raiders, previously won at trial against Sunoco after successfully demonstrating Sunoco had mischaracterized forested wetlands on the Gerhart property that were destroyed by Sunoco’s pipeline construction.

Public interest groups Clean Air Council, Delaware Riverkeeper Network, and Mountain Watershed Association secured two settlements against Sunoco that required Sunoco to overhaul its Mariner East construction plans and protocols to better protect drinking water supplies, streams, and wetlands.

Under the state Clean Streams Law, successful parties in such cases may be awarded attorneys fees, thus recouping some of the costs associated with challenging flawed permits.

 In both cases, however, theEnvironmental Hearing Board created a new legal rule that shields permittees like Sunoco from paying attorneys fees, in effect, leaving those costs to the Department of Environmental Protection, and thus, taxpayers. 

These cases have large implications for the public’s ability to access the courts to protect their environmental rights and to hold permittees accountable.

“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.

“No company is above the law. When Sunoco chose to violate the law by cutting down hundreds of trees in our forested wetlands, then claim that these trees did not exist, we had no choice but to appeal the permits issued by DEP. Sunoco must be held accountable for its misclassifications, and DEP must be held accountable for failure to verify information," said Ellen Gerhart. 

“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,” said Melissa Marshall, Community Advocate with the Mountain Watershed Association.

“The public plays a crucial role in holding polluters accountable and when the public is kept out of court because the litigation is too expensive, or taxpayers are forced to foot the bill, we are just propping up the very companies that are harming our health and environment. This case is about leveling the playing field and ensuring the public has a chance to be heard,” said Joseph Otis Minott, Executive Director and Chief Counsel of Clean Air Council.

Related Articles - Attorneys Fees:

-- PA Supreme Court Agrees To Hear Challenge To Ruling Denying Environmental Groups Attorney's Fees In Successful Appeal Of Energy Transfer/Sunoco Mariner East Pipeline Permit

-- Environmental Groups Petition PA Supreme Court To Overturn Ruling Denying Attorney’s Fees In Successful Challenge To Mariner East Pipeline Permit

Related Articles - Pipelines:

-- AP: PUC Judge: Sunoco/Energy Transfer Failed To Protect Delaware County Community During Construction Of Mariner East Pipeline, $51,000 Penalty Proposed

-- Senate Budget Hearings: PA’s Experience With New Pipeline Construction Shows State Laws Not Strong Enough To Prevent Environmental Damage, Protect Public Safety

[Posted: March 10, 2022]

3/14/2022