Clean Air Council to argue that polluters should pay court costs, not Department of Environmental Protection
Oral argument in Clean Air Council’s case seeking payment from Sunoco Pipeline, L.P. for the Council’s legal fees and costs in its Mariner East 2 permit appeal has been postponed due to COVID-19. The case is currently before the Commonwealth Court, which is an intermediate appellate court in Pennsylvania that hears matters involving state and local governments or regulatory agencies.
In the underlying suit, Clean Air Council, the Delaware Riverkeeper Network and Mountain Watershed Association challenged Pennsylvania DEP’s issuance of permits to Sunoco to construct a pair of 306-mile pipelines carrying ethane, propane, and butane because the plans for the project indicated that building them would spell disaster for Pennsylvania. After it received the DEP permits and started building the pipelines, Sunoco spilled drilling fluids into upland areas, wetlands, and surface waters in violation of the terms and conditions of its permits, as well as caused flooding, water well contamination, and numerous other problems all along the pipeline route. Clean Air Council’s appeal also led to a temporary halt on work on the project and improvements to Sunoco’s construction practices.
Before the Environmental Hearing Board ruled on the merits of the case, the parties entered into a settlement agreement. Now, the question before the Commonwealth Court is whether Clean Air Council can receive costs and fees from Sunoco for some of the legal work that was necessary after Clean Air Council appealed. This is a concept known as “fee-shifting,” where a winning party to a case is paid for its legal costs by another party. Historically, winning parties in Environmental Hearing Board cases were mostly paid by DEP, but here Clean Air Council asked for payment from Sunoco instead.
The Commonwealth Court will sit en banc (with all the judges) to hear the oral argument, which is necessary to overturn existing precedent. This case has significant importance to the environmental non-profit legal community, because litigation is very expensive. Large corporations often have the funds to engage in protracted litigation which can be prohibitively expensive for environmental non-profits challenging corporate conduct. If the Commonwealth Court decides that Clean Air Council can receive costs and fees from Sunoco (rather than from DEP), it may become more feasible for environmental non-profits to enforce environmental laws that protect human health and the environment, and for DEP to better protect the environment. You can find the docket sheet for the case here: https://ujsportal.pacourts.us/DocketSheets/AppellateCourtReport.ashx?docketNumber=309+CD+2019&dnh=gIVIjnQIVDX%2fU1E%2bLWq5fw%3d%3d“
