As I train back from the second day of the Environmental Law Forum, here are some takeaways from the presentations I attended today:
1. The Environmental Hearing Board Roundtable session continues to be one of the most useful and entertaining sessions at the Forum.
The five judges of the EHB offered pointers and procedural insights on practice before the Board, covering the pre-hearing phase and the hearing itself. One particularly interesting discussion related to what seems to be an uptick (perhaps driven by Marcellus Shale appeals) in party requests to designate discovery materials, and sometimes motion exhibits, as confidential business information (CBI). The judges are very cognizant of the balance to be struck between protection of documents that fit within the scope of the CBI rules on the one hand, and the public interest in open and transparent proceedings on the other. The panel's general sense was that even when the parties to the appeal jointly request CBI designation, the Board cannot simply defer to the parties' characterization, but must take a hard look at the materials to ensure they truly are CBI.
2. Water quality, air quality, and mining cases are driving the most appeals that come before the EHB, with oil and gas matters not far behind.
It's not surprising to see water quality and mining at the top of the list, as they are two areas in which statutory fee shifting provisions exist, making appeals in these areas attractive to third party community groups or environmental organizations.
3. Keep your eyes peeled for revisions to the EHB Rules.
Draft rules are now wending their way through final state agency reviews before publication in the Pennsylvania Bulletin. The revisions will cover the EHB's move to mandatory electronic filing (other than for Notices of Appeal, which may be filed electronically or in hard copy); clarification of the timing of responses to dispositive motions in third party appeals; and the deletion of outdated rules that pertain to the Pennsylvania Costs Act, which lapsed in 2007. The proposed rules could be published within the next month, and would become effective later this year.
4. My colleague Phil Hinerman's Insider's Guide to the Pennsylvania Environmental Hearing Board is an indispensable resource for practitioners.
Phil's EHB practice guide got a nice shout-out from the panelists in the Skills session on Appeals.
5. Even state practitioners would do well to sit in on the annual session led by Temple Law Professor Todd Aagaard and Widener Law Professor Jim May on Federal Environmental Decisions.
Todd and Jim engagingly summarized a variety of federal appeals court and U.S. Supreme Court decisions from the past year, and drew out trends and analysis with applicability to Pennsylvania environmental law, such as the 6th Circuit's recent decision in the Summit Petroleum case defining adjacency for purposes of aggregation of air sources, which litigants have already sought to rely upon in litigation pending before the EHB.
As usual, on top of the great programming that the Forum puts on every year, it was great to see former colleagues and old friends, and to meet new friends. Thanks to the organizers, course planners, and faculty.
Originally published April 11, 2013
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