HARRISBURG, PA (February 22, 2023) – Today, the Pennsylvania Supreme Court handed down a major decision in two suits where the public sought reimbursement for legal costs in environmental cases: the Clean Air Council, the Delaware Riverkeeper Network, and Mountain Watershed Association v. DEP and Sunoco Pipeline and Gerhart v. DEP and Sunoco Pipeline cases.
The Supreme Court’s decision reversed a lower court ruling that had put up a major barrier to reimbursement of legal costs for environmental lawsuits brought by non-profits and residents. Now, members of the public, who are harmed by permits allowing industrial activities, and who successfully appeal those permits, are more easily able to get reimbursement of their legal costs. The reimbursement can come not only from the state, who issued the permit, but from the company holding the permits, and profiting from the permitted activity. Legal experts, fees, and other costs necessary for these cases can easily reach tens or hundreds of thousands of dollars, and the cases can go on for years or even decades, making appeals like this out of reach for most absent the ability to recoup costs.
The decision is a victory for the environmental organizations, who had sought but been denied reimbursement for their legal costs from Sunoco Pipeline, the builder of the controversial Mariner East pipelines. It is also a victory for the Gerhart family, landowners along the pipeline route who stood up to the company and also had success at the Pennsylvania Environmental Hearing Board.
“Today’s ruling from the Pennsylvania Supreme Court is a huge win for the public,” said Joseph Minott, Executive Director and Chief Counsel of Clean Air Council. “Too often, when members of the public have been harmed by big polluters, they are unable to afford legal support. Today’s ruling makes it easier for the public to be compensated for their legal costs when their lawsuits are successful. This opens the door for the public to finally have their day in court and for justice to be restored.”
Melissa Marshall, Community Advocate with the Mountain Watershed Association stated, “We are pleased with the decision for two reasons. Not only does it remedy a bad standard, but it also clarifies, for the first time, that it is the permittees – often exploitative industries, such as mining and fracking — and not just the taxpayers, who should bear the financial burden when environmental groups bring protective lawsuits.”
“Today’s decision appropriately recognizes the significant role that citizen objectors play in the vindication of environmental rights and the General Assembly’s laws protecting the public natural resources. This ruling helps support legal action against bad permitting decisions, and holds accountable the parties who stand to benefit financially from those decisions,” said Kacy Manahan, Senior Attorney for the Delaware Riverkeeper Network.
“Today’s opinion shows that Pennsylvanians who enforce the Clean Streams Law have a voice and that applicants who submit faulty permit applications to DEP can be held responsible for their sloppy or incompetent work,” said Rich Raiders, attorney for Stephen and Ellen Gerhart, Huntingdon County landowners who won a fee award from DEP, but not Sunoco, in a case decided with the Clean Air Council matter in today’s opinion. The Gerharts successfully challenged a wetlands determination on their Huntingdon County property where Sunoco was required to remediate a parcel of forested wetland disturbed during construction.
In March of 2022, Clean Air Council, Mountain Watershed Association, and the Delaware Riverkeeper Network petitioned the Pennsylvania Supreme Court to overturn that lower court decision, which made it nearly impossible for residents or advocacy organizations to be compensated for their legal expenses from the permit holder when appealing a DEP permit. The Commonwealth Court decision affirmed the Environmental Hearing Board’s decision that denied the groups’ request for Energy Transfer (Sunoco Pipeline’s parent) to compensate parties for their legal fees stemming from an appeal of Sunoco’s Mariner East 2 pipeline permits.
Image credit: The Washington Post
This Black History Month, we are honoring Dr. Robert Bullard, the father of the environmental justice movement.
Environmental justice is the fair treatment of people of all races, incomes, and cultures with respect to the development, implementation, and enforcement of environmental laws, regulations, and policies. Environmental justice advocates for the people who are the most impacted by pollution. Impacted residents need to be in the room when decisions are being made and policies are being enacted that will impact their health, welfare and quality of life. More than being present in the room, they need to have significant input and the final say to what kinds of projects, initiatives, and resources are advanced, and how they get applied.
In the ‘80’s, environmental justice was a new concept but didn’t initially get a lot of support., However, the movement has made tremendous strides thanks to advocates like Dr. Robert Bullard.
Dr. Robert Bullard was born in 1946 into a family that defied the odds of their time. In 1875, 10 years after the official abolishment of slavery in the U.S., his great-grandparents acquired several hundred acres of timberland in Elba, Alabama. As property owners, his parents and grandparents were able to vote under the Jim Crow laws. Dr. Bullard and his siblings were able to go to college due to income from harvesting timber from the land. Dr. Bullard graduated from his undergrad program, in the midst of the Vietnam War. He was drafted, but never deployed. Dr. Bullard went on to get his masters and a Ph.D. in sociology.
Dr. Bullard was teaching sociology at Texas Southern University when his wife, Linda Mckeever Bullard, a lawyer, asked for his help on a class-action lawsuit she was filing to stop a landfill from going into a middle class Black community in Houston. She wanted to know where the city’s other landfills were. Through the data gathered, Dr. Bullard discovered that even though Black people made up just a quarter of Houston’s population, all five of the city’s garbage dumps, six of its eight incinerators, and three out of its four privately-owned landfills were in Black neighborhoods. And, more than 80% of all garbage in Houson was being disposed in Black communities.
The data also highlighted that not all communities have access to the zoning process that protects them. This left them vulnerable to petrochemical plants, refineries, and coal plants because they were not able to adequately advocate for themselves. Big polluters followed the path of least resistance which means they usually end up developing in low-income communities and communities of color that lack the resources to fight them.
Bullard’s wife’s case lasted 8 years. Bean v. Southern Waste Management found that the placement of the dump, if built, would cause irreversible damage to the community. The court specifically found that “the landfill would affect the entire nature of the community, its land values, its tax base, its aesthetics, the health and safety of its inhabitants, and the operation of Smiley High School which was only 1700 feet from the site.”But, the facility was built anyway and many more industrial sites followed after the dump was built causing property value to decrease, ultimately stealing the generational wealth of a whole community.
The data collected during the case became America’s first ethnographic study to identify neighborhoods in proximity to polluting industries. The case became America’s first-ever lawsuit against polluters charging environmental racism under the Civil Rights law.
Dr. Bullard wrote Dumping in Dixie in response to the court’s decision to allow the dump to be built and in response to environmental and civil rights organizations, at the time, who were on two different tracks. Environmental organizations told Dr. Bullard, when he approached them about environmental justice and injustices of these facilities, that they didn’t work on “social issues.” Civil rights groups told him their focus was on discrimination in housing, employment, and education.
Dumping in Dixie became an environmental justice bible. It traces freed Black communities as they purchased property in the formerly-slave owning South– and how the polluting facilities followed them. It also shows that in addition to being deprived of infrastructure and education, sanitation, and clean water, these communities were also being exposed to higher-than-average levels of pollutants, compromising their health and well-being for generations.
Dr. Bullard has published 18 award winning books about environmental justice as of today.
Environmental justice has gained support over the past 20 years, but many communities are still fighting for the right to clean air, clean water, and to be able to make decisions for their communities.
For more information about Robert Bullard and his work, please visit https://drrobertbullard.com/.
