United States: PA Environmental Hearing Board's Recent Decisions Give Renewed Emphasis to PA Constitution's Article I, Section 27, Carrying Significant Implications for All PADEP Permit Programs

When the Pennsylvania Department of Environment Protection (PADEP) issues an environmental permit — such as a National Pollutant Discharge Elimination System (NPDES) stormwater construction permit for a new commercial or residential development — that final action may be appealed to the Pennsylvania Environmental Hearing Board (EHB) within 30 days of receiving notice by any person with standing to challenge the action, which generally includes any individual or organization claiming to be directly and substantially impacted. That allows municipalities, environmental groups and private individuals to submit appeals to the EHB, arguing that the PADEP's action was arbitrary and capricious, an abuse of discretion or contrary to law.

Until now, the EHB's primary focus would be on whether the PADEP's issuance of the permit complied with the applicable statutes and regulations. In arguing that the PADEP's action was contrary to law, appellants would routinely add an allegation that the PADEP's action violated Article I, Section 27 of the Pennsylvania Constitution, which states that the "people have a right to clean air, pure water and to the preservation of the natural, scenic, historic and esthetic values of the environment."

Historically, it has been extremely difficult for appellants to win an appeal based on an alleged violation of Article I, Section 27, because long-standing EHB case law held that as long as the PADEP complied with the applicable regulations issuing the permit, and those regulations were adopted pursuant to Article I, Section 27 (which they all have been since 1971), then the Article I, Section 27 challenge would be unsuccessful.

In two recent cases, however, the EHB denied motions for summary judgment filed by permit holders seeking to dismiss Article I, Section 27 challenges. The EHB held in these cases that a demonstration of compliance with the applicable regulations will no longer be deemed adequate to satisfy Article I, Section 27. Although neither case resulted in a ruling on the merits, they potentially leave the PADEP permits vulnerable to challenges on the basis that the PADEP should have used its discretion and imposed additional conditions to reflect its responsibility to implement Article I, Section 27.

The most recent case where this issue came up was Justin Snyder et al. v. PADEP and Columbia Gas Transmission, LLC, which was decided by the EHB on December 21, 2015. In that case, the PADEP had approved an air quality plan for a natural gas compressor station in Pike County. A group of neighbors challenged the permit in an appeal to the EHB. Among the arguments raised in the appeal, the neighbors contended that the PADEP's action violated Article I, Section 27 of the Pennsylvania Constitution, asserting they had a right to clean air which was not taken into consideration.

The permittee asserted that its compliance with all of the applicable statutory and regulatory requirements automatically constituted compliance with Article I, Section 27 and sought to dismiss that claim in a motion for partial summary judgment. In rejecting the permittee's argument and allowing the Article I, Section 27 claim to proceed to a hearing, EHB Judge Bernard A. Labuskes referred to his prior ruling in Sludge Free UMBT v. DEP, decided on July 1, 2015, in which he had written extensively regarding the test to be used from here forward by the EHB for determining compliance with the constitutional provision.

As noted by Judge Labuskes, the Commonwealth Court in Payne v. Kassab, 312 A.2d 86 (Pa. Cmwlth. 1973), affirmed 361 A.2d 263 (Pa. 1976) first articulated a three-part test for analyzing whether the PADEP's final action comports with Article I, Section 27. The Payne test consists of the following questions:

  • Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth's public natural resources?
  • Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum?
  • Does the environmental harm that will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?

In Sludge Free UMBT, Judge Labuskes emphasized the second and third prongs of the Payne test, which had previously been largely ignored by the EHB. In his decision, he stated that perfect compliance with the minimum regulatory requirements "may not always be enough" if the PADEP can be shown to have unreasonably exercised its discretion. The judge indicated that, going forward, the EHB would address all three questions set forth in the Payne test in cases in which the appellants claim that the PADEP's action violates Article I, Section 27, which would open the door for greater scrutiny to be placed on PADEP's permitting decisions.

So what do these recent EHB decisions regarding Article I, Section 27 mean for developers applying for and receiving environmental permits from PADEP? They mean that the permitting process must be considerably more thoughtful on the part of both the PADEP and the permit applicant.

Let me provide an example of what I mean by thoughtful. Suppose a residential developer is going to construct 200 homes on 100 acres and is applying to the PADEP for an NPDES stormwater construction permit. Ordinarily, the developer's engineer would prepare an application, paying close attention to the requirements under the applicable statutes, regulations and PADEP guidance. It would submit that application to the PADEP, and the PADEP's review would focus primarily on whether the application complies with the applicable statutes, regulations and guidance.

Given the EHB's recent rulings on Article I, Section 27, however, both the permit applicant and the PADEP would be well advised to consider whether additional efforts, such as voluntarily agreeing to include additional BMPs as conditions in the permit, should be taken to establish in the administrative record that "reasonable efforts" were undertaken to further "reduce to a minimum the environmental incursion of the project under review." Moreover, both the permit applicant and the PADEP might want to highlight areas in the permit application that specifically identify the "benefits" of the project and the efforts being undertaken to minimize any potential environmental harm.

While those things might have been taken into consideration previously by both the PADEP and the permit applicant and its consultants, the most recent EHB decisions focusing on Article I, Section 27 would now compel the PADEP and the permit applicant to affirmatively undertake those efforts, do more to highlight such information in the permit application so the EHB can clearly see it later if the permit is appealed, and consider whether to voluntarily include conditions in the permit that would not necessarily be "required" by the regulations, but would demonstrate to the EHB that the PADEP exercised its discretion and took additional efforts to reduce any environmental incursion to a minimum.

Again, while neither of the recent cases involved decisions on the merits of the underlying Article I, Section 27 claims, the PADEP and permit applicants would do well to anticipate such claims and marshal all of the ammunition possible for the EHB to later find, if it comes to that, no violation of Article I, Section 27 based on the thoughtfulness of both the PADEP and the permit applicant in doing more than is minimally necessary under the applicable statute and regulations and reflecting that in the permit itself and the underlying administrative record.

It is clear that permits issued by the PADEP are slightly more vulnerable to challenges based on Article I, Section 27 than they were before. Both the PADEP and permit applicants need to be aware of those recent decisions and act accordingly.

The content of this article is intended to provide a general guide to the subject matter. Specialist advice should be sought about your specific circumstances.

To print this article, all you need is to be registered on Mondaq.com.

Click to Login as an existing user or Register so you can print this article.

Authors
 
In association with
Related Video
Up-coming Events Search
Tools
Print
Font Size:
Translation
Channels
Mondaq on Twitter
 
Register for Access and our Free Biweekly Alert for
This service is completely free. Access 250,000 archived articles from 100+ countries and get a personalised email twice a week covering developments (and yes, our lawyers like to think you’ve read our Disclaimer).
 
Email Address
Company Name
Password
Confirm Password
Position
Mondaq Topics -- Select your Interests
 Accounting
 Anti-trust
 Commercial
 Compliance
 Consumer
 Criminal
 Employment
 Energy
 Environment
 Family
 Finance
 Government
 Healthcare
 Immigration
 Insolvency
 Insurance
 International
 IP
 Law Performance
 Law Practice
 Litigation
 Media & IT
 Privacy
 Real Estate
 Strategy
 Tax
 Technology
 Transport
 Wealth Mgt
Regions
Africa
Asia
Asia Pacific
Australasia
Canada
Caribbean
Europe
European Union
Latin America
Middle East
U.K.
United States
Worldwide Updates
Check to state you have read and
agree to our Terms and Conditions

Terms & Conditions and Privacy Statement

Mondaq.com (the Website) is owned and managed by Mondaq Ltd and as a user you are granted a non-exclusive, revocable license to access the Website under its terms and conditions of use. Your use of the Website constitutes your agreement to the following terms and conditions of use. Mondaq Ltd may terminate your use of the Website if you are in breach of these terms and conditions or if Mondaq Ltd decides to terminate your license of use for whatever reason.

Use of www.mondaq.com

You may use the Website but are required to register as a user if you wish to read the full text of the content and articles available (the Content). You may not modify, publish, transmit, transfer or sell, reproduce, create derivative works from, distribute, perform, link, display, or in any way exploit any of the Content, in whole or in part, except as expressly permitted in these terms & conditions or with the prior written consent of Mondaq Ltd. You may not use electronic or other means to extract details or information about Mondaq.com’s content, users or contributors in order to offer them any services or products which compete directly or indirectly with Mondaq Ltd’s services and products.

Disclaimer

Mondaq Ltd and/or its respective suppliers make no representations about the suitability of the information contained in the documents and related graphics published on this server for any purpose. All such documents and related graphics are provided "as is" without warranty of any kind. Mondaq Ltd and/or its respective suppliers hereby disclaim all warranties and conditions with regard to this information, including all implied warranties and conditions of merchantability, fitness for a particular purpose, title and non-infringement. In no event shall Mondaq Ltd and/or its respective suppliers be liable for any special, indirect or consequential damages or any damages whatsoever resulting from loss of use, data or profits, whether in an action of contract, negligence or other tortious action, arising out of or in connection with the use or performance of information available from this server.

The documents and related graphics published on this server could include technical inaccuracies or typographical errors. Changes are periodically added to the information herein. Mondaq Ltd and/or its respective suppliers may make improvements and/or changes in the product(s) and/or the program(s) described herein at any time.

Registration

Mondaq Ltd requires you to register and provide information that personally identifies you, including what sort of information you are interested in, for three primary purposes:

  • To allow you to personalize the Mondaq websites you are visiting.
  • To enable features such as password reminder, newsletter alerts, email a colleague, and linking from Mondaq (and its affiliate sites) to your website.
  • To produce demographic feedback for our information providers who provide information free for your use.

Mondaq (and its affiliate sites) do not sell or provide your details to third parties other than information providers. The reason we provide our information providers with this information is so that they can measure the response their articles are receiving and provide you with information about their products and services.

If you do not want us to provide your name and email address you may opt out by clicking here .

If you do not wish to receive any future announcements of products and services offered by Mondaq by clicking here .

Information Collection and Use

We require site users to register with Mondaq (and its affiliate sites) to view the free information on the site. We also collect information from our users at several different points on the websites: this is so that we can customise the sites according to individual usage, provide 'session-aware' functionality, and ensure that content is acquired and developed appropriately. This gives us an overall picture of our user profiles, which in turn shows to our Editorial Contributors the type of person they are reaching by posting articles on Mondaq (and its affiliate sites) – meaning more free content for registered users.

We are only able to provide the material on the Mondaq (and its affiliate sites) site free to site visitors because we can pass on information about the pages that users are viewing and the personal information users provide to us (e.g. email addresses) to reputable contributing firms such as law firms who author those pages. We do not sell or rent information to anyone else other than the authors of those pages, who may change from time to time. Should you wish us not to disclose your details to any of these parties, please tick the box above or tick the box marked "Opt out of Registration Information Disclosure" on the Your Profile page. We and our author organisations may only contact you via email or other means if you allow us to do so. Users can opt out of contact when they register on the site, or send an email to unsubscribe@mondaq.com with “no disclosure” in the subject heading

Mondaq News Alerts

In order to receive Mondaq News Alerts, users have to complete a separate registration form. This is a personalised service where users choose regions and topics of interest and we send it only to those users who have requested it. Users can stop receiving these Alerts by going to the Mondaq News Alerts page and deselecting all interest areas. In the same way users can amend their personal preferences to add or remove subject areas.

Cookies

A cookie is a small text file written to a user’s hard drive that contains an identifying user number. The cookies do not contain any personal information about users. We use the cookie so users do not have to log in every time they use the service and the cookie will automatically expire if you do not visit the Mondaq website (or its affiliate sites) for 12 months. We also use the cookie to personalise a user's experience of the site (for example to show information specific to a user's region). As the Mondaq sites are fully personalised and cookies are essential to its core technology the site will function unpredictably with browsers that do not support cookies - or where cookies are disabled (in these circumstances we advise you to attempt to locate the information you require elsewhere on the web). However if you are concerned about the presence of a Mondaq cookie on your machine you can also choose to expire the cookie immediately (remove it) by selecting the 'Log Off' menu option as the last thing you do when you use the site.

Some of our business partners may use cookies on our site (for example, advertisers). However, we have no access to or control over these cookies and we are not aware of any at present that do so.

Log Files

We use IP addresses to analyse trends, administer the site, track movement, and gather broad demographic information for aggregate use. IP addresses are not linked to personally identifiable information.

Links

This web site contains links to other sites. Please be aware that Mondaq (or its affiliate sites) are not responsible for the privacy practices of such other sites. We encourage our users to be aware when they leave our site and to read the privacy statements of these third party sites. This privacy statement applies solely to information collected by this Web site.

Surveys & Contests

From time-to-time our site requests information from users via surveys or contests. Participation in these surveys or contests is completely voluntary and the user therefore has a choice whether or not to disclose any information requested. Information requested may include contact information (such as name and delivery address), and demographic information (such as postcode, age level). Contact information will be used to notify the winners and award prizes. Survey information will be used for purposes of monitoring or improving the functionality of the site.

Mail-A-Friend

If a user elects to use our referral service for informing a friend about our site, we ask them for the friend’s name and email address. Mondaq stores this information and may contact the friend to invite them to register with Mondaq, but they will not be contacted more than once. The friend may contact Mondaq to request the removal of this information from our database.

Security

This website takes every reasonable precaution to protect our users’ information. When users submit sensitive information via the website, your information is protected using firewalls and other security technology. If you have any questions about the security at our website, you can send an email to webmaster@mondaq.com.

Correcting/Updating Personal Information

If a user’s personally identifiable information changes (such as postcode), or if a user no longer desires our service, we will endeavour to provide a way to correct, update or remove that user’s personal data provided to us. This can usually be done at the “Your Profile” page or by sending an email to EditorialAdvisor@mondaq.com.

Notification of Changes

If we decide to change our Terms & Conditions or Privacy Policy, we will post those changes on our site so our users are always aware of what information we collect, how we use it, and under what circumstances, if any, we disclose it. If at any point we decide to use personally identifiable information in a manner different from that stated at the time it was collected, we will notify users by way of an email. Users will have a choice as to whether or not we use their information in this different manner. We will use information in accordance with the privacy policy under which the information was collected.

How to contact Mondaq

You can contact us with comments or queries at enquiries@mondaq.com.

If for some reason you believe Mondaq Ltd. has not adhered to these principles, please notify us by e-mail at problems@mondaq.com and we will use commercially reasonable efforts to determine and correct the problem promptly.