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...