This post was written by our incredibly talented legal intern, CharLee Rosini. CharLee is in her third year at Duquesne Law.

On January 27, 2020 Fair Shake filed an amicus brief with Clean Air Council, PennFuture and the Mountain Watershed Association to protect Pennsylvanians’ access to environmental justice. Amicus briefs, short for Amicus curiae, which literally means “friend of the court”, are used as a way for a third party to offer information and opinion to the court for a case they are not directly involved in but may have interest in.

The Process at Stake

The state of Pennsylvania has spent years creating a fair process for review of permits issued by the Department of Environmental Protection (DEP) – such as permits for fracking, pipelines, and other oil and gas projects – yet a recent decision by a state court would dismantle that process.

After the DEP issues a permit, interested parties have an opportunity to appeal that permit. Interested parties could include the applicant, concerned residents, local governments, and environmental groups with members in the area. The typical appeal process begins with the Environmental Hearing Board (EHB), which is a unique quasi-judicial body that hears environmental administrative appeals of the DEP’s final actions. This includes challenges to permit decisions, DEP enforcement actions, and new regulations. An appeal must be made to the EHB within 30 days of the action.

When an appeal is brought to the EHB, their scope of review is de novo, which means to start from the beginning. Unlike most appellate hearings, which rely only on facts determined by the initial decision-maker, the EHB holds a new trial to determine whether the DEP action is supported by evidence or is a proper exercise of their authority. The EHB has the power to substitute its own discretion for that of the DEP and make its own conclusions, rather than limiting their review to the facts initially presented to the DEP. Thus, the EHB can modify or strike a DEP decision, remand an issue to the DEP or approve the DEP action.

The Legal Battle in Question

This specific case arises as a result of the DEP’s issuance of Adelphia Gateway, LLC’s Air Quality Plan Approval, which authorizes Adelphia to construct and operate a compressor station and metering station in West Rockhill Township, Bucks County, Pennsylvania. West Rockhill Township appealed this issuance to the EHB. The EHB dismissed the appeal relying on previous Third Circuit decisions providing the Third Circuit with original and exclusive jurisdiction to review federally delegated Department permitting decisions associated with interstate natural gas pipeline projects. Ultimately, this means that appeals of this kind would have to go to the Third Circuit, rather than the EHB. The question to be determined in this case is whether this is the appropriate avenue for appealing DEP permit decisions or whether the EHB has jurisdiction to review these decisions as well.

Our Argument

Fair Shake Environmental Legal Services joined in the amicus brief to express its support for ensuring minimum due process for anyone seeking environmental justice. Pennsylvania set in law a process that provides the opportunity for a de novo hearing before a decision-maker with specialized environmental expertise, specifically the Environmental Hearing Board.

The intent behind the creation of the Environmental Hearing Board was for persons appointed to the EHB to have expertise in environmental matters. Thus, unlike federal circuit court judges, the EHB judges are required to have a minimum of five years of relevant legal experience. In addition to prior relevant experience, the EHB judges have the distinct ability to hear and decide environmental matters. Due to review of these technical matters brought before them, the judges develop “specialized expertise” in this area of law. Although the EHB’s decisions can be appealed to the Commonwealth court, “Pennsylvania appellate courts . . . recognize the [EHB’s] unique expertise in environmental regulation and . . . generally defer to [its] interpretations.” This deference shows that there is a significant benefit of having a specialized tribunal with environmental expertise hearing exclusively environmental appeals.

If the opportunity for a de novo hearing before decision-makers with specialized knowledge is taken away, this only increases the risk of injustice.