Back to News

PA Supreme Court Enhances Ability of Permit Challengers to Recover Attorney’s Fees from Private Parties

Published on

February 23, 2023

The Pennsylvania Supreme Court has made it easier for public interest groups and others challenging clean water permits issued by the Department of Environmental Protection (“DEP”) to recover attorney’s fees and costs from permit applicants. In a decision issued February 22, 2023, the Court struck down a rule imposed by the Environmental Hearing Board (“EHB”) that limited the recovery of attorney fees and costs from private parties to those instances where the applicants acted in bad faith. The Court’s ruling increases the potential that permit applicants must not only bear their own legal costs in defending a permit appeal but may also be required to reimburse parties that challenge clean water permits for their attorney’s fees and costs.

Parties affected by DEP approval or disapproval of permit applications can appeal that action to the EHB. These parties include a permittee (in the case of a permit application disapproval) or parties impacted by a permit approval. The Pennsylvania Clean Streams law allows the EHB to order any party to the appeal to pay costs and attorney’s fees that it determines to have been reasonably incurred by another party to the appeal. The Court’s action reverses a standard established by the EHB that limited the recovery of attorney’s fees and costs against private parties to an appeal to only instances where a private party acted in bad faith or for an improper purpose.

Despite striking down the EHB’s previous standard for awarding fees under the Clean Streams Law, the Court left the EHB with broad discretion to decide when to award attorney’s fees and costs, based upon the facts of individual appeals. That said, permit applicants now face an increased risk of footing the legal expenses of parties challenging their permits. These expenses can run in the hundreds of thousands of dollars. There are steps, however, that permit applicants can take to minimize this risk. The most important measure is for those seeking permits from DEP to submit high quality permit applications. This means working closely with environmental consultants, and environmental counsel when necessary, when preparing permit applications. This is particularly true for projects that may be controversial or subject to heightened public scrutiny. Failure to do so could lead not only to a denial of a permit application by DEP but payment of opposing parties’ legal expenses. High quality permit applications not only increase the potential that DEP will take timely favorable actions, it also increases the odds that the approvals will withstand challenges.

The case is Clean Air Council v. DEP.

If you have any questions pertaining to the latest court ruling or changes to permit applications, please contact me or anyone in the Barley Snyder Environment & Energy Industry Group.


Related News

View More News
Press Release
June 18, 2024

Barley Snyder Attorney Gregory Young Honored for Fifty Years of Service by the Pennsylvania Bar Association

For Immediate Release Reading, Pa. – Attorney Gregory R. Young has b...

Learn More
Press Release
May 20, 2024

Barley Snyder Partner Justin Tomevi Appointed to Eastern University’s College of Business and Leadership Advisory Board

For Immediate Release York, Pa. – Barley Snyder is pleased to announce pa...

Learn More
News Alert
May 2, 2024

Draft Changes to the 2024 NPDES General Permit (PAG-02) and Their Impact on Future Development Projects

The comment period for the draft National Pollutant Discharge Elimination S...

Learn More

Other Upcoming Events

View All Upcoming Events
Jun
18
12:00 pm
-
1:00 pm
event
Location

FTC Non-Compete Ban: What Businesses Need to Know – Webinar

Learn More

Get in Touch

Our attorneys, paralegals and staff look forward to hearing from you. Please reach out to let us know how we can help.

Get In Touch
RECOGNIZED IN
Super Lawyers
Best Law Firms US News
Best Lawyers