Prove your humanity

A Pennsylvania Supreme Court decision last month makes it easier for the public and environmental groups to get reimbursed for legal fees when they successfully appeal environmental permits.

The decision resulted from two cases: Clean Air Council, the Delaware Riverkeeper Network, and Mountain Watershed Association v. DEP and Sunoco Pipeline and Gerhart v. DEP and Sunoco Pipeline.

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The case involves the Mariner East pipeline construction

Melissa Marshall, an attorney and the community advocate for Mountain Watershed Association, said their case was an appeal of the Mariner East pipeline environmental permits, which began six years ago over issues with water quality.

Sunoco owns the Mariner East, which carries natural gas liquids across Pennsylvania for export in Philadelphia. The pipeline project racked up numerous environmental violations and fines during its construction, and in 2022 the company pleaded no contest to 14 criminal counts related to violations of the state’s Clean Streams law brought by the Pennsylvania Attorney General, now-governor Josh Shapiro.

The construction of the Mariner East was regulated with permits from the state’s Department of Environmental Protection with two types of permits that addressed erosion and sedimentation and wetland and waterways,

“So we took the only regulatory mechanisms that were available to us, which are these two permits, and appealed them to DEP saying that they were not done properly, “ Marshall said.

Eventually, they appealed to the state’s Environmental Hearing Board (EHB) for a kind of temporary injunction for Sunoco to stop construction because of the spilling of drilling fluid into waterways.

Legal fees had been paid by DEP

That petition was granted and ultimately led to their right to sue the losing party for attorney’s fees under a provision in the Clean Streams Law.

In this case, the losing party is the state’s Department of Environmental Protection, and by default, Pennsylvania taxpayers. Those legal fees can add up in the permit appeal process.

“Because of the evidentiary standards for environmental appeals to the EHB, you almost always have to have a technical expert witness, and those can charge $500 to $700 an hour, which makes this absolutely cost prohibitive to the average person,” Marshall said.

Conservatively, Marshall said, an environmental permit appeal can cost upwards of $200,000 or more, and the process can go on for years.

Marshall said in the past, often the amount awarded for legal fees was only a small percentage of the reimbursements being asked for so as not to squeeze the DEP.

Pa. Supreme Court: Reimbursement for legal fees can come from the company, too

She said that was not what the law intended, so they appealed to the Commonwealth Court and then to the Pennsylvania Supreme Court. Its decision was that when environmental permits are successfully appealed, reimbursement can come from the permitting agency and the company holding the permit.

“It creates a new incentive for environmental groups like ourselves and maybe even private parties to bring these types of appeals and really enforce these provisions under the Clean Streams Law, which are intended to protect the public interest and to protect clean water,” Marshall said.

In a press release, Joseph Minott, Executive Director and Chief Counsel of the Clean Air Council, called the decision a huge win for the public.

“This opens the door for the public to finally have their day in court and for justice to be restored,” Minott said.