Yesterday, the Pennsylvania Environmental Hearing Board issued an important decision that provides guidance on how to apply Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) in the context of a permitting decision in light of the Pa. Supreme Court’s recent decision in Pa. Environmental Defense Found. v. Commonwealth, No. 10 MAP 2015 (Pa. June 20, 2017) (“PEDF”).  See Center for Coalfield Justice v. DEP, EHB Docket No. 2014-072-B (Adjudication issued Aug. 15, 2017).  

This case began when the Center for Coalfield Justice and the Sierra Club appealed the Pennsylvania Department of Environmental Protection’s (“PADEP”) issuance of two permit revisions to Consol (Permit Revision Nos. 180 and 189) for longwall mining in the Bailey Mine Eastern Expansion Area (“BMEEA”).  In the Board’s decision, after finding that Permit Revision No. 189 violated the Clean Streams Law and the Bituminous Mine Subsidence and Land Conservation Act (“Mine Subsidence Act”), the Board turned to the Appellants’ objections under the ERA.  The Board noted that “neither the decision in PEDF nor the plurality decision in Robinson Twshp., discuss the application of Article I, Section 27 principles in the context of a Department permitting decision,” and therefore the Board endeavored to set out some guidelines of its own.

As for Permit Revision No 189, because the Board had determined that it violated the Clean Streams Law and the Mine Subsidence Act, the Board reasoned that it did not have to go through a full blown evaluation under the new standard set out in PEDF.  Instead, the Board had “little difficulty concluding that this Department action also violates Article I, Section 27” because “a Department permitting action that is not lawful under the statutes and regulations in place to protect the waters of the Commonwealth, cannot be said to meet the Department’s trustee responsibility under Article I, Section 27 and is clearly a state action taken contrary to the rights of citizens to pure water.”

As for Permit Revision No. 180, which the Board found did not violate the Clean Streams Law or the Mine Subsidence Act, the Board had to provide a more in-depth analysis under PEDF. 

The first right set forth in Section 27 is “the right of citizens to clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment.”  The Board found that the test to determine whether this first right was violated is “to determine whether the Department considered the environmental effects of its permitting action and whether that action is likely to cause, or in fact did cause, the unreasonable degradation or deterioration of the waters of the Commonwealth in BMEEA.”  In finding that PADEP “gave consideration to the environmental effects of its permit decision in this case prior to taking the permit action,” the Board noted the following:

The Department’s permit application required Consol to provide detailed information on the environmental effects of Consol’s proposed longwall mining operations.  The review of Consol’s permit application took place over seven years and involved meetings between Department personnel and Consol, several revisions to the permit application, extensive review of the permit application by the Department’s technical staff and public participation through comments and at least one hearing.  As part of its permit decision, the Department excluded areas beneath Kent Run and Polen Run from longwall mining because of concerns regarding the potential environmental effects of longwall mining on those streams and required Consol to mitigate and restore any streams that were impacted by the longwall mining that was permitted.

In finding that “Permit Revision No. 180 did not cause the unreasonable degradation or deterioration of the waters of the Commonwealth in the permit area,” the Board noted the following:

As was discussed previously, there is no doubt that Consol’s longwall mining was anticipated to and did cause impacts to the streams in the BMEEA.  If those impacts impaired the uses of those streams, we would easily conclude that such impacts constituted the unreasonable degradation and deterioration of the waters of the Commonwealth.  As we have discussed previously, however, we did not find that the impacts that were anticipated and actually occurred as a result of the Department issuing Permit Revision No. 180 resulted in stream impairment.  The issue then becomes whether impacts that do not impair a stream can still be considered as causing the unreasonable degradation or deterioration of the waters of the Commonwealth and therefore, violate Article 1, Section 27.  In the abstract, we find that certain impacts that don’t impair a stream but do impact it, can, based on their scope or duration, rise to the level of causing unreasonable degradation or deterioration.  Finding otherwise would mean that you are treating the Article 1, Sec 27 Constitutional standard as coextensive with compliance with the statutes and the regulations governing clean water.  The Supreme Court in PEDF clearly rejected such an approach when it rejected the Payne test.  There is no question that the longwall mining authorized by the Department degrades and causes deterioration of the streams in BMEEA on at least a limited and temporary basis.  Ultimately then it becomes an issue of whether the degradation and deterioration is unreasonable.  We hold that they are not in this case.  In order to be unreasonable, we conclude that the destruction and degradation of the streams would need be more significant than the limited and temporary impacts that result from Consol’s longwall mining under Permit Revision No. 180 issued by the Department.  Longwall mining has social utility and is a type of development leading to an increase in the general welfare, convenience, and prosperity of the people.  If it lacked that characteristic, it would be more likely to be judged unreasonable.  The impacts to the streams are generally limited in time and scope in a large part because of the requirements for mitigation and restoration that the Department placed in Permit Revision No. 180.  We think that the Department permit action in this case is not contrary to the right of the citizens of Pennsylvania to clean air and pure water, and to the preservation of natural, scenic, historic and esthetic values of the environment set out in Article 1, Section 27.

The second right set forth in Section 27 is the “common ownership by the people, including future generations, of Pennsylvania’s public natural resources.”  The Board found that the streams in BMEEA are public natural resources covered by Section 27.  The next sentence of Section 27 imposes trustee obligations on the Commonwealth.  “Putting all of this together,” the Board stated, “the issue for the Board to decide is whether the Department properly carried out its trustee duties of prudence, loyalty and impartiality to conserve and maintain the streams in the BMEEA by prohibiting their degradation, diminution and depletion when it issued Permit Revision No. 180.”  In finding that PADEP “satisfied its trustee responsibilities in issuing Permit Revision No. 180,” the Board noted the following:

First, the Department acted to conserve and maintain both Kent Run and Polen Run by denying Consol permission to undermine those streams.  This decision clearly managed these natural resources for the benefit of the citizens of Pennsylvania by prohibiting any degradation, diminution and depletion of these two streams.  As we have discussed, the remaining streams in the BMEEA will incur some impacts as a result of Consol’s longwall mining.  We think that the Department has acted to conserve and maintain those streams in a prudent, loyal and impartial manner.  The Department exercised its responsibility to review the permit application with ordinary care and skill that one would exercise when dealing with your own property.  In fact, the Department can well be said to have exercised a higher level of skill given the technical expertise and years of experience it brought to its review.  It managed the process and put requirements in the permit revision to ensure that the impacts to the streams would be mitigated and the streams will be restored if necessary.  The review and permitting was done in an impartial manner that gave due regard to the interests of both the current citizens and future citizens of Pennsylvania.

To summarize these guidelines, the Board in Center for Coalfield Justice focused on the fact that Consol provided detailed information on the environmental effects of its proposal as part of its permit application, and further focused on PADEP’s extensive permit review process (i.e., seven-year review, multiple meetings between PADEP and Consol, several revisions to the permit application, public participation, and at least one hearing).  The Board also noted that, as part of the permit review process, PADEP required conditions that prevented or mitigated certain environmental impacts.  The Board put significant weight on the “social utility” as well as the “increase in the general welfare, convenience, and prosperity of the people” that would result from the permit decision.  The Board also found that the environmental impacts would be “generally limited in time and scope.”  Those with interests in PADEP permitting decisions can find some guidance on ERA compliance from the Board’s decision.  However, the Board will likely continue to refine these guidelines as they face new factual scenarios in subsequent appeals, and therefore applicants for new permits or permit revisions should stay attuned to this evolving area of law.

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