Articles Posted in Environmental Law

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In this case, the Pennsylvania Supreme Court examined the contours of the 1971 Environmental Rights Amendment to the Pennsylvania Constitution in light of a declaratory judgment action brought by the Pennsylvania Environmental Defense Foundation (“Foundation”) challenging, inter alia, the constitutionality of statutory enactments relating to funds generated from the leasing of state forest and park lands for oil and gas exploration and extraction. Because state parks and forests, including the oil and gas minerals therein, were part of the corpus of Pennsylvania’s environmental public trust, the Supreme Court held that the Commonwealth, as trustee, had to manage them according to the plain language of Section 27, which imposed fiduciary duties consistent with Pennsylvania trust law. The Court further found that the constitutional language controlled how the Commonwealth may dispose of any proceeds generated from the sale of its public natural resources. View "PA Env. Defense Fdn. v. Wolf" on Justia Law

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Through Pennsylvania’s Land Recycling and Environmental Remediation Standards Act, ("Act 2"), the General Assembly created a scheme for establishing “cleanup standards” applicable to voluntary efforts to remediate environmental contamination for which a person or entity may bear legal responsibility. Appellant EQT Production Company (“EPC”), owned and operated natural gas wells in the Commonwealth. In May 2012, the company notified Appellee, the Department of Environmental Protection (the “Department” or “DEP”), that it had discovered leaks in one of its subsurface impoundments containing water that had been contaminated during hydraulic fracturing operations. Subsequently, EPC cleared the site of impaired water and sludge and commenced a formal cleanup process pursuant to Act 2. In May 2014, the agency tendered to EPC a proposed “Consent Assessment of Civil Penalty,” seeking to settle the penalty question via a payment demand of $1,270,871, subsuming approximately $900,000 attending asserted ongoing violations. EPC disputed the Department’s assessment, maintaining that: penalties could not exceed those accruing during the time period in which contaminants actually were discharged from the company’s impoundment; all such actual discharges ended in June 2012; and the Act 2 regime controlled the extent of the essential remediation efforts. The issue this case presented for the Supreme Court's review centered on whether ECT had the right to immediately seek a judicial declaration that the DEP's interpretation of the Act was erroneous. The Court held that the impact of the Department’s threat of multi-million dollar assessments against EPC was sufficiently direct, immediate, and substantial to create a case or controversy justifying pre-enforcement judicial review via a declaratory judgment proceeding, and that exhaustion of administrative remedies relative to the issues of statutory interpretation that the company has presented was unnecessary. View "EQT Production Co. v. DEP" on Justia Law

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Appellees were 34 individuals who owned or resided on properties adjacent to a 220-acre farm in York County, owned since 1986 by appellant George Phillips. Phillips operated his own farm, Hilltop Farms, and leased part of the land to appellant Steve Troyer, who raised various crops. Appellants Synagro Central, LLC and Synagro Mid-Atlantic are corporate entities engaged in the business of recycling biosolids for public agencies for land application; they contracted with municipalities to recycle and transport biosolids, which were then used as fertilizer. Over approximately 54 days between March 2006 and April 2009, approximately 11,635 wet tons of biosolids were applied to 14 fields at the farm. The biosolids were spread over the fields’ surface and not immediately tilled or plowed into the soil. Appellees contended that as soon as the biosolids were applied, extremely offensive odors emanated. In July 2008, appellees filed two similar three-count complaints, which were consolidated; they also filed an amended complaint in 2010. In Count I, appellees alleged appellants’ biosolids activities created a private nuisance. Count II alleged negligence by appellants in their duty to properly handle and dispose of the biosolids. Count III alleged appellants’ biosolids activities constituted a trespass on appellees’ land. Appellees sought injunctive relief, compensatory and punitive damages, and attorney’s fees and costs. In October 2009, after receiving the third notice of violation from the PaDEP, Synagro suspended the use of biosolids at Hilltop Farms, rendering appellees’ request for injunctive relief moot. The last application of biosolids at the farm occurred in April 2009. Appellants moved for summary judgment on the basis that appellees’ nuisance claims were barred by the one-year statute of repose in section 954(a) of the Right To Farm Act (RTFA). The issue this appeal presented for the Supreme Court's review was whether a trial court or a jury should have determined the applicability of section 954(a), and whether the trial court properly concluded the land application of biosolids as fertilizer is a “normal agricultural operation,” rendering section 954(a) applicable. The Court held that section 954(a) was a statute of repose; its applicability, as determined by statutory interpretation, was a question of law for courts to decide. Further, the trial court properly held biosolids application fell within the RTFA’s definition of “normal agricultural operation,” which barred appellees’ nuisance claims. Accordingly, the Court reversed the portion of the Superior Court’s order that reversed the grant of summary judgment for appellants on the nuisance claims; the remainder of the order was affirmed. View "Gilbert v. Synagro Central" on Justia Law

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This matter concerned a parcel of commercial/industrial property located in Springettsbury Township, which was owned by appellee Harley-Davidson Motor Company. Approximately 110 acres of the parcel contained buildings and other improvements, and the remaining 119 acres were considered “excess” land. Previously, the United States Navy, from 1941 until 1964, and, later, a private firm, American Machinery and Foundry Company (“AMF”), with whom Harley-Davidson merged in 1969, used the parcel to operate a weapons manufacturing plant and, in the course of their business, buried numerous contaminants (as well as unexploded military ordnance) in the subsurface strata. This use caused significant environmental damage to the property. In 1993, Harley-Davidson repurposed a portion of the site to operate a motorcycle manufacturing plant. In 2003, the Assessment Office of York County notified Harley-Davidson that it intended to increase the parcel’s property tax assessment. Harley-Davidson filed an appeal with the York County Board of Assessment Appeals, which affirmed. Harley-Davidson then filed a de novo appeal with the trial court. Appellant Central York School District (“School District”) intervened, and the parties proceeded to a three-day bench trial to determine the parcel’s assessments for tax years 2004 through 2010, pursuant to the Second Class A and Third Class County Assessment Law. This appeal by allowance before the Pennsylvania Supreme Court involved the proper determination of the fair market value of Harley-Davidson's property for purposes of property tax assessment, including consideration of environmental contamination, remediation, and stigma, as well as the potential for future subdivision of the property. After review, the Supreme Court found: (1) hypothetical ways in which a property could be used by potential buyers are properly considered by an expert in evaluating what a willing buyer would pay for a property; (2) the potential effect of agreements concerning possible environmental remediation liability and ongoing environmental restrictions and maintenance is a relevant factor that must be taken into account when determining the fair market value of property, and (3) environmental stigma may be relevant to determining fair market value of real estate for tax purposes in appropriate circumstances. The Supreme concluded: (1) the Commonwealth Court erred in concluding that the School District’s expert valued the subject property as already subdivided, and, thus, its determination in this regard was reversed; (2) the Commonwealth Court properly concluded that these agreements were not accounted for by the trial court; thus, the Commonwealth Court’s remand was affirmed; and (3) the trial court properly relied upon the School District’s expert’s opinion regarding a 5% environmental stigma devaluation for the property; thus, reversed the Commonwealth Court’s rejection of the trial court’s reliance upon such stigma in its valuation of the property. View "Harley-Davidson v. Central York Sch District et al" on Justia Law

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Issues of constitutional import stemming from cross-appeals taken from the Commonwealth Court's ruling on expedited challenges to Act 13 of 2012 were before the Supreme Court in this case. Act 13 contained sweeping legislation affecting Pennsylvania’s environment particularly the exploitation and recovery of natural gas in Marcellus Shale. The litigation was accelerated in part because the legislation itself was designed to take effect quickly and imposed obligations which required the challengers to formulate their legal positions swiftly; and in part in recognition of the economic importance of the legislation to the Commonwealth and its citizens. Following careful deliberation, the Supreme Court's decision found several challenged provisions of Act 13 were unconstitutional. Madame Justice Todd, and Mr. Justice McCaffery, found that several core provisions of Act 13 violated the Commonwealth’s duties as trustee of Pennsylvania’s public natural resources under the Environmental Rights Amendment; other challenges lacked merit; and several issues required further Commonwealth Court proceedings. Mr. Justice Baer, concurred in the mandate, and joined the majority in all but Parts III and VI(C); Justice Baer would have found the "core constitutional infirmity" sounded in substantive due process. Accordingly, the Commonwealth Court was affirmed in part, reversed in part, and the case remanded for further proceedings. View "Robinson Township, et al v. Pa. Public Utility Commission and Attorney General -" on Justia Law

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This case stemmed from the underground leaking of gasoline from a gasoline station in Blue Bell, Pennsylvania, which caused an explosion in the springhouse of a realty office situated across the street. Many thousands of gallons moved underground throughout the surrounding neighborhoods. Pursuant to Pennsylvania Rule of Civil Procedure 2229(a), 45 affected individuals filed a single complaint against six defendants, alleging that gasoline and vapor from the leak had traveled underground, through soil and groundwater, and had reached and entered their homes, causing property damage to their homes and illness to those living there. At issue before the Supreme Court was whether the Superior Court erred in holding that the trial court abused its discretion in ordering a separate trial of the claims of four test-case, or “bellwether” plaintiffs, from among the 45 plaintiffs. The Court concluded that the Superior Court erred. Furthermore, the Supreme Court held that the Superior Court erred in determining that the trial court abused its discretion in severing the claims in the interest of convenience and judicial economy. The order of the Superior Court was reversed and the jury verdict was reinstated. View "Ball, et al v. Bayard Pump Co." on Justia Law

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The issue before the Supreme Court pertained to the Surface Mining Conservation and Reclamation Act and whether it preempted a provision in a local zoning ordinance that established a setback for mining activities from all residential structures. The zoning ordinance at issue, which was enacted by Adams Township in Cambria County after the effective date of the Surface Mining Act, permits mining activities in a district known as the Conservancy (S) District only by special exception. Hoffman Mining Company, Inc. (Hoffman Mining) sought to mine for coal on a 182.1-acre tract of land within the Adams Township Conservancy (S) District adjacent to the Village of Mine 42. Hoffman Mining requested a special exception mine which was denied by the Zoning Board. Hoffman Mining appealed to the Commonwealth Court, which affirmed the Zoning Board's denial. Upon review, the Supreme Court found that with enactment of the Surface Mining Act, the General Assembly did not expressly or impliedly preempt a local zoning ordinance that imposes a residential setback from mining activities. The Court did "not discern an intent of the General Assembly to completely deprive local zoning authorities of their MPC-enabled authority and responsibility for land use management and planning as applied to the location and siting of surface mining in their municipalities." Accordingly, the Court affirmed the order of the Commonwealth Court. View "Hoffman Mining Co., v. Zoning Hearing Board of Adams Twp." on Justia Law

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Cromwell Township appealed a Commonwealth Court's order that sentenced its supervisors to three to six months' imprisonment for contempt. The Department of Environmental Protection (DEP) had approved the Township's comprehensive plan for sewage services, but the Township decided the Plan was too expensive to implement. Despite requesting several extensions of time, the Township failed to implement its plan. At the time, the Orbisonia Rockhill Joint Municipal Authority (ORJMA) which operated public sewage systems including those within the Township, was experiencing an overload in its wastewater treatment plant. The Township Board of Supervisors approached ORJMA and proposed a joint venture that would increase the capacity of ORJMA's plant and simultaneously decrease the anticipated cost to the Township for sewage treatment. The Township submitted an amended Plan which was accepted by the DEP. But prior to implementing the Plan, the Township Board elected new members. New members who openly opposed the Plan repealed the ordinances required under the amended Plan. The Township then stopped cooperating. The DEP filed suit to enforce the Plan asking that fines be levied against Board members and to set a timeline to purge the contempt. The court, unsatisfied with the Township's efforts to purge the contempt sentenced its members to jail time. Upon review, the Supreme Court found that the Township's failing to timely appeal the Plan and its amendment when new supervisors took office meant that the DEP's act was final, and the Township was foreclosed from challenging the Plan. However, the Court found that the Commonwealth Court's failing to use less restrictive means prior to imposing prison sentences on Board members compelled reversal: "the Commonwealth Court had lesser alternatives available to it in its attempt to compel Township's compliance with the court's prior order… but the Commonwealth Court inexplicably refused." The Court reversed the Commonwealth Court's order sentencing Township Board members to imprisonment, and remanded the case for further proceedings. View "Pa. Dept. of Environ. Prot. v. Cromwell Twp." on Justia Law

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In 2008, a Pennsylvania Game Commission Officer found Appellant Mark Clegg in possession of two rifles during a hunting incident. Appellant had a prior conviction of attempted burglary. In addition to various summary violations under the Game and Wildlife Code, the Commonwealth charged Appellant with violation of the Uniform Firearms Act. The issue on appeal to the Supreme Court was whether attempted burglary is a "qualifying offense" that prohibits an individual from possessing a firearm under the Act. Upon review of the plain meaning of the Act, the Supreme Court found that attempted burglary is not one of the enumerated offenses under the Act, and as such, was not a "qualifying" offense for which Appellant could be charged in this case. The Supreme Court affirmed the trial court's decision to dismiss Appellant's charge under the Act. View "Pennsylvania v. Clegg" on Justia Law