Environmental Law

EHB Further Clarifies Fee Shifting Provisions Under PA Clean Streams Law

By M. Joel Bolstein

The fee shifting provisions of the Clean Streams Law (CSL) have been a subject of recent litigation in Pennsylvania.  In a decision issued December 15, 2009, the Pennsylvania Environmental Hearing Board (EHB) further clarified its position on this subject.  The case involved a request for fees under Section 307 of the CSL filed by two municipal authorities.  The authorities had appealed the issuance of the Skippack Creek Watershed TMDL back in 2005.  EPA subsequently withdrew the TMDL and no hearing took place before the EHB, because the parties entered into a stipulation of settlement in January 2009.  The authorities later filed a petition for costs with the EHB, asserting they were prevailing parties and their suit played a substantial role in the withdrawal of the TMDL.  DEP countered that the TMDL was withdrawn by EPA, not the Department.  Moreover, the Department argued that EPA withdrew the TMDL because it wasn't strict enough, which was the opposite view to that expressed by the Authorities.  

The Board's unanimous decision was written by Judge Krancer.  It's well worth reading by anyone who believes they may find themselves requesting fees under the CSL.  There is a thorough analysis and recitation of the applicable law, including the PA Supreme Court's decision in Solebury Township v. DEP, which was decided in 2007 and had the Department paying a Township's costs for challenges brought to permits issued for the Route 202 bypass that were eventually withdrawn by PennDOT.  Judge Krancer draws on Justice Ginsburg's 2001 dissent in Buckhannon Board and Care Home, Inc. , Justice Saylor's decision in Solebury, and Judge Labuskas' decision in the Solebury remand.  Ultimately, he rejects the fee petition, finding that Section 307 of the CSL is not a "vehicle for recovery of fees and costs where it was not DEP who took the action being claimed as victory or the substantial victory."  He noted that in this case, "it was not DEP that did anything or took any action or changed any behavior which supplied what the applicants point to as their good result. . . . Even if the EPA's withdrawal of the Skippack TMDL can be considered a benefit to the applicants, it was EPA, a federal sovereign and a non-party to the EHB suit, which provided that benefit."  

To sum up, the Board's holding is that in order to be successful in requesting fees under Section 307 of the CSL, "the petitioner must still be at least a substantially prevailing party in that the party must have attained some result from the other side which is positive from that party's point of view and the suit must have been a substantial or significant cause of the defendant's action providing relief."  In this case, that standard wasn't met, because the result (withdrawal of the TMDL) was not obtained from the Department, but from EPA, and it did not result directly from the litigation before the EHB.   The decision could be appealed to the Commonwealth Court, so stay tuned.   

Full post as published by PA Brownfields Environmental Law on December 15, 2009 (boomark / email).