Attorney Fee Provision In Pa.'s Clean Streams Law May Run Afoul Of 14th Amendment

• Published date: 26 July 2023
• Subject Matter: Environment, Environmental Law, Clean Air / Pollution
• Law Firm: McNees Wallace & Nurick
• Author: Brigid Landy Khuri

Imagine you've purchased some land and plan to build your dream home. You know you need several government approvals, and your contractor says this includes something called a "Chapter 102″ permit. No problem. The folks at the Department of Environmental Protection (DEP) are helpful. You provide them with everything they ask for, and the permit is issued. Then, you get a "notice of appeal." A neighbor does not want you to build and has challenged DEP's permitting decision. After several months of litigation, DEP tweaks an error it made in the permit and then settles the lawsuit. Now your neighbor wants you to pay for his lawyer's fees in that litigation. Can they do that? Following a recent decision from Pennsylvania's Supreme Court, the answer is probably yes. If you're thinking that feels unfair'maybe even unconstitutional'you may be right.

Third-party litigation in environmental law is not new. Congress, as well as many state legislatures, have authorized third-party suits to buttress the enforcement of environmental laws. And, as part of this effort, legislatures have specifically authorized recovery of attorney fees by third parties from the entity shown to be in violation of the law. This is a statutorily authorized departure from the "American Rule," which requires parties to pay their own attorney fees absent bad faith or vexatious conduct. In contrast, attorney fees arising out of the permitting process have, traditionally, been limited to an assessment against the government because it is the government that makes permitting decisions.

Following a February 2023 decision from the Pennsylvania Supreme Court, the Commonwealth is poised to blend these concepts by requiring the permittee to pay the third-party challenger's attorney fees, even where that permittee applied for and received a permit in good faith. In Clean Air Council v. Department of Environmental Protection, 289 A.3d 928 (Pa. 2023), the Pennsylvania Supreme Court vacated a decision of the Environmental Hearing Board (EHB), which had denied attorney fees because neither party acted in bad faith, and remanded the case to the EHB for further proceedings. The EHB is currently scheduled to hold a hearing on the fee requests in November of this year. The matter is docketed at 2017-009.

This article argues that requiring a permittee to pay the attorney fees of a third-party challenger to a permit in the absence of bad faith on the part of the permittee would violate the Fourteenth Amendment...