Clean Air Council v. DEP

IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clean Air Council, The Delaware :
Riverkeeper Network, and :
Mountain Watershed Association, Inc., :
:
Petitioners :
:
v. : No. 309 C.D. 2019
:
Commonwealth of Pennsylvania, :
Department of Environmental :
Protection, :
:
Respondent :

Department of Environmental :
Protection, :
:
Petitioner :
:
v. : No. 313 C.D. 2019
: Argued: June 10, 2020
Clean Air Council, The Delaware :
Riverkeeper Network, Mountain :
Watershed Association, Inc. :
and Sunoco Pipeline, L.P., :
:
Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge

1
This case was assigned to the opinion writer before Judge Brobson succeeded Judge
Leavitt as President Judge.
OPINION BY JUDGE WOJCIK FILED: February 16, 2021

In these consolidated appeals, the Clean Air Council, The Delaware
Riverkeeper Network, and Mountain Watershed Association, Inc. (collectively,
Objectors), and the Department of Environmental Protection (DEP), petition for
review of the orders of the Environmental Hearing Board (EHB) denying the fee
applications of Objectors and Sunoco Pipeline, L.P. (Sunoco) filed pursuant to the
provisions of The Clean Streams Law.2 Also before the Court is Sunoco’s
Application to Quash DEP’s appeal. We grant the Application to Quash, quash
DEP’s appeal, and affirm EHB’s order.
On February 13, 2017, DEP granted a total of 20 permits to Sunoco, 3
for erosion and sediment control3 and 17 for water obstruction and encroachment,4

2
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§691.1-691.1001.

3
These are referred to as “Chapter 102” permits, granted under the provisions of Chapter
102 of DEP’s regulations, 25 Pa. Code §§102.1-102.51. See, e.g., Becker v. Department of
Environmental Protection (Pa. Cmwlth., No. 560 C.D. 2017, filed December 1, 2017), slip op. at
15 (“Under The Clean Streams Law and its regulations promulgated at Chapter 102 of Title 25 of
the Pennsylvania Code, [DEP] has the authority to issue orders to prevent the pollution of waters
of the Commonwealth, which are defined very broadly to include . . . ‘any and all rivers, streams
. . . or parts thereof.’ Section 1 of The Clean Streams Law, 35 P.S. §691.1[.]”); Delaware
County Community College v. Fox, 342 A.2d 468, 479-80 (Pa. Cmwlth. 1975) (holding that
DEP’s regulations in Chapter 102 of the Pennsylvania Code, relating to erosion and
sedimentation control, provide protection against secondary polluting effects should they become
imminent).

4
These are referred to as “Chapter 105” permits, granted under the provisions of Chapter
105 of DEP’s regulations, 25 Pa. Code §§105.1-105.64. As we have previously explained:

The [Dam Safety and Encroachments Act (DSEA), Act of
November 26, 1978, P.L. 1375, as amended, 32 P.S. §§693.1-
693.27], similar to The Clean Streams Law, provides [DEP’s]
statutory authority for Chapter 105 regulations governing water
obstructions and encroachments, the scope of which is broadly
(Footnote continued on next page…)
2
which Sunoco had sought relating to its plan to construct the Pennsylvania Pipeline
Project also known as the Mariner East 2 natural gas pipeline. EHB Op. at 2. This
decision was appealed to the EHB on February 14, 2017, by the Organizations, id.,
which led to a series of additional appeals, filings, and negotiations resulting in a
settlement agreement between Objectors and the DEP, which stated that it

generally provides for the development or revision of
[DEP] policies and procedures relating to future natural
gas pipelines in consideration for [Objectors]
withdrawing their appeal. The settlement provides for
the establishment of a stakeholder group on pipeline
construction, and for the online availability of pipeline
permit applications and review documents. No part of
the settlement altered any of the 20 permits under appeal,
[a February 8, 2018 consent order and agreement
between DEP and Sunoco], or the various other
stipulated orders entered into by all the parties.
[Objectors] received $27,500 in reimbursement of costs
and attorney’s fees from [DEP] in the settlement and

(continued…)

delineated to include “[a]ll water obstructions and encroachments
. . . located in, along, across or projecting into any watercourse,
floodway or body of water, whether temporary or permanent.”
Section 4 of the DSEA, 32 P.S. §693.4 (emphasis added).

Becker, slip op. at 16. See also Section 105.15(b) of DEP’s regulations, 25 Pa. Code §105.15(b)
(“For structures or activities where water quality certification is required under section 401 of the
Clean Water Act (33 U.S.C.A. §1341), an applicant . . . shall prepare and submit to [DEP] for
review, an environmental assessment containing the information required by subsection (a) for
every dam, water obstruction or encroachment located in, along, across or projecting into the
regulated water of this Commonwealth.”); Solebury Township v. Department of Environmental
Protection, 928 A.2d 990, 999 (Pa. 2007) (“[W]e conclude that, at least under the circumstances
presented in this case, challenges to The Clean Streams Law aspects of the issuance of Section
401 Certifications are ‘proceedings pursuant to this act’ for purposes of the fee-shifting
provisions of Section 307 [of The Clean Streams Law].”).

3
 agreed not to seek further reimbursement for fees and
costs from [DEP].
Id. at 4. Sunoco was not a party to this settlement agreement. Id.
Objectors then filed an application for costs and fees with EHB,
seeking to recover $228,246 from Sunoco for Objectors’ efforts relating to certain
segments of their EHB appeal and the costs incurred in the fee application process
itself. EHB Op. at 5-6. Sunoco responded with an application of its own,
requesting $298,906.12 in costs and fees from Objectors, in order to partially cover
the expenses Sunoco had incurred by defending against the EHB appeal, as well as
any costs and fees resulting from the fee application process. Id. at 6.
On February 19, 2019, in a divided opinion, EHB denied both
applications. Noting that Section 307(b) of The Clean Streams Law5 affords wide
latitude to award costs and fees, the EHB majority stated that it applies a three-step
process when a party seeks such compensation from DEP: “(1) [EHB determines]
whether the fees have been incurred in a proceeding pursuant to The Clean Streams
Law; (2) [EHB then determines] whether the applicant has satisfied the threshold
criteria for an award; and (3) if those two prongs are satisfied, [EHB] then
determine[s] the amount of the award.” EHB Op. at 7.
However, the majority highlighted that different goals and
responsibilities were involved in this matter, as the applications under
consideration sought costs and fees from private parties, rather than from
Commonwealth entities. EHB Op. at 7-8. The majority stated that “the standard

35 P.S. §691.307(b). Section 307(b) states, in relevant part: “The [EHB], upon the
5

request of any party, may in its discretion order the payment of costs and attorney’s fees it
determines to have been reasonably incurred by such party in proceedings pursuant to [The
Clean Streams Law].”

4
for awarding fees against any private party need not be concomitant with the
standard for fees against [DEP].” Id. at 8.
Accordingly, the majority held that it should impose a more stringent
test, in which a private party could be liable for such costs and fees only if EHB
found that the private party “engaged in dilatory, obdurate, vexatious, or bad faith
conduct in the course of prosecuting or defending [an] appeal[ to the EHB.]” EHB
Op. at 10. The majority reasoned that this would protect permittees’ rights to due
process in the context of a third-party appeal and would not result in permittees
being “dissuaded from vigorously protecting their interests in those proceedings in
good faith.” Id. at 9.
In support of this conclusion, the majority cited and discussed the
Pennsylvania Supreme Court’s opinion in Lucchino v. Department of
Environmental Protection, 809 A.2d 264 (Pa. 2002), which affirmed EHB’s use of
a bad faith standard in determining whether to impose an award of costs and fees
against a private individual. EHB Op. at 9-10.6 Furthermore, the majority
reasoned that, “[f]or purposes of the instant appeal, no other credible, workable
alternative to the bad faith standard has been proposed.” Id. at 10. Applying this
standard to the facts herein, the majority found that neither Objectors, nor Sunoco,
had operated in bad faith during the course of Objectors’ appeal and, on that basis,
denied their respective fee applications. Id. at 11-17.
In contrast, although the EHB minority agreed that neither Objectors
nor Sunoco was entitled to attorney’s fees under the circumstances, the minority

6
In Lucchino, the Supreme Court noted that EHB determined that the objector in that
case had used the administrative appeal process in bad faith, to do nothing more than harass DEP
and the affected permittee. 809 A.2d at 269.

5
disputed the propriety of using the bad faith test to evaluate such fee applications.
EHB Op. at 19. The minority stated that there is no legal basis for applying a bad
faith standard, nor for using different tests depending upon whether the application
is lodged against a government entity or a private party. Id. at 19-21.
Rather, the minority maintained that Section 307(b) of The Clean
Streams Law clearly and unambiguously establishes a uniform standard that
permits EHB, upon request, to assess costs and fees at its discretion, without any
need for a finding of bad faith. EHB Op. at 20. The minority distinguished
Lucchino from this matter, arguing that while it read Lucchino as requiring the
EHB to apply a bad faith standard when considering a fee application lodged
against a third-party appellant, no such mandate exists for those directed towards
permittees. Id. at 21.
In addition, the minority did not “believe that allowing attorney’s fee
awards against permittees [would] have a ‘chilling effect’ on permit applicants.”
EHB Op. at 21. The minority explained that this was so because the interests at
play are different for permit applicants compared to likely third-party appellants,
such as Objectors herein, who might otherwise be discouraged from making their
voice heard if an appeal mounted in good faith could nonetheless result in a hefty
financial penalty. Id. Furthermore, the minority noted that Section 307(b)’s fee-
shifting provision is to be liberally construed. The minority determined that, given
a permittee’s role in the permitting process and any resultant appeals, “if the law
mandates an award of attorney’s fees under The Clean Streams Law [to the
appellant], . . . a permittee should shoulder at least some of its rightful
responsibility.” Id. at 21-25.

6
 Both Objectors and DEP separately appealed EHB’s decision to this
Court, and the appeals were consolidated. Subsequently, Sunoco intervened in the
appeals and filed the Application to Quash seeking to quash DEP’s appeal, arguing
that DEP does not have standing to appeal the EHB’s fee application decision.
Application to Quash ¶¶1-5.

I.
Preliminarily, with respect to the Application to Quash, we note that
DEP submitted a brief to EHB regarding permittee liability under Section 307(b)
of The Clean Streams Law, and participated in oral argument before EHB. See
DEP’s Answer to Application ¶¶12-18. It appears that this was done with the
assent of both Objectors and Sunoco. Id. However, the record of this case does
not show that DEP ever formally sought intervention in the attorney’s fee and cost
application proceedings. See Section 4(e) of the Environmental Hearing Board
Act7 (“Intervention.--Any interested party may intervene in any matter pending
before [EHB].”).

7
Act of July 13, 1988, P.L. 530, 35 P.S. §7514(e). Regarding the application of Section
4(e), we have stated:

[I]n the context of intervention, the phrase “any interested party”
actually means any person or entity interested, i.e., concerned, in
the proceedings before [EHB]. The interest required, of course,
must be more than a general interest in the proceedings; it must be
such that the person or entity seeking intervention will either gain
or lose by direct operation of [EHB]’s ultimate determination. See
Black’s Law Dictionary 730 (5th ed. 1979); see also [Section 101
of the Administrative Agency Law,] 2 Pa. C.S. §101[,] wherein a
party is defined as “[a]ny person who appears in a proceeding
before an agency who has a direct interest in the subject matter of
such proceeding.” To interpret this phrase any differently, under
(Footnote continued on next page…)
7
 The traditional concept of standing “is rooted in the notion that for a
party to maintain a challenge to an official order or action, he must be aggrieved in
that his rights have been invaded or infringed.” Franklin Township v. Department
of Environmental Resources, 452 A.2d 718, 719 (Pa. 1982). “[A] party who is not
negatively affected by the matter he seeks to challenge is not aggrieved, and thus,
has no right to obtain judicial resolution of his challenge.” City of Philadelphia v.
Commonwealth, 838 A.2d 566, 577 (Pa. 2003). To that end, an individual’s
standing in a matter is normally contingent upon their ability to articulate an
interest that is substantial, direct, and immediate. See, e.g., Fumo v. City of
Philadelphia, 972 A.2d 487, 496 (Pa. 2009); Department of Environmental
Resources v. Jubelirer, 614 A.2d 199, 203 (Pa. 1989); William Penn Parking
Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280-83 (Pa. 1975).
However, the notion of traditional standing does not apply when
dealing with appeals from administrative agencies. Our Supreme Court has held:

[B]y virtue of Section 702 of the Administrative Agency
Law, [2 Pa. C.S. §702,] neither party status nor
traditional aggrievement is necessary to challenge actions
of an administrative agency. Rather, standing to appeal
administrative decisions extends to “persons,” including
non-parties, who have a “direct interest” in the subject

(continued…)

these circumstances, would lead to an absurd and unreasonable
result as well as render the [Environmental Hearing Board] Act’s
intervention provision ineffective; presumably, neither of which
the legislature intended here. Section 1922(1), (2) of the Statutory
Construction Act of 1972, 1 Pa. C.S. § 1922(1), (2).

Browning-Ferris, Inc. v. Department of Environmental Resources, 598 A.2d 1057, 1060-61 (Pa.
Cmwlth. 1991).

8
 matter, as distinguished from a “direct, immediate, and
substantial” interest. [Application of El Rancho Grande,
Inc., 437 A.2d 1150, 1152 (Pa. 1981)] (quoting 2 Pa. C.S.
§702). A direct interest requires a showing that the
matter complained of caused harm to the person’s
interest. South Whitehall Township Police Service v.
South Whitehall Township, [555 A.2d 793, 795 (Pa.
1989)]. Although not the full equivalent of “direct,
immediate, and substantial,” the direct interest
requirement retains the function of differentiating
material interests that are discrete to some person or
limited class of persons from more diffuse ones that are
common among the citizenry.
Citizens Against Gambling Subsidies, Inc. v. Pennsylvania Gaming Control Board,
916 A.2d 624, 628 (Pa. 2007) (Citizens).
Nevertheless, this relaxed test for standing does not excuse a party
from formally intervening at the administrative level. Mere participation, even
rising to the level of filing a brief or engaging in oral argument before an
administrative agency, is not enough to confer standing to a party in the absence of
formal, approved intervention. As the Pennsylvania Supreme Court has observed:

This conclusion is in accord with our finding in
Citizens that permitting an appeal absent intervention in
the proceedings before the [Pennsylvania Gaming
Control] Board is “inconsistent with orderly rules of
procedure and would foster untenable impracticalities in
terms of the development of an essential record for
consideration on appeal.” 916 A.2d at 629. . . .

Further, [p]etitioners’ attempt to distinguish Citizens on
the ground that the petitioners there chose not to
intervene is unpersuasive. The salient fact in Citizens
was simply that the petitioners did not intervene when
they had the opportunity to do so. Moreover, the fact that
[p]etitioners participated at the hearing without
intervening does not afford them standing. See Stanbro
v. Zoning Hearing Board of Cranberry Township, [566
A.2d 1285, 1287 (Pa. Cmwlth. 1989)] (holding that

9
 participation at the trial court level by filing a brief and
participating in oral argument without intervention is
insufficient to be accorded standing to appeal).
Society Hill Civic Association v. Pennsylvania Gaming Control Board, 928 A.2d
175, 183 (Pa. 2007) (footnote and emphasis omitted). Therefore, because DEP did
not formally intervene before EHB, DEP does not have standing under the
Administrative Agency Law to appeal EHB’s decision denying Objectors’
Application.
As a result, the only basis upon which DEP could possess standing in
this matter would be pursuant to its statutory powers. In Pennsylvania Game
Commission v. Department of Environmental Resources, 555 A.2d 812, 815 (Pa.
1989) (citation omitted), our Supreme Court discussed the nature of how an agency
may possess legislatively established standing:

Although our law of standing is generally articulated in
terms of whether a would-be litigant has a “substantial
interest” in the controverted matter, and whether he has
been “aggrieved” or “adversely affected” by the action in
question, we must remain mindful that the purpose of the
“standing” requirement is to insure that a legal challenge
is by a proper party. . . . The terms “substantial interest,”
“aggrieved[,]” and “adversely affected” are the general,
usual guides in that regard, but they are not the only ones.
For example, when the legislature statutorily invests an
agency with certain functions, duties and responsibilities,
the agency has a legislatively conferred interest in such
matters. From this it must follow that, unless the
legislature has provided otherwise, such an agency has an
implicit power to be a litigant in matters touching upon
its concerns. In such circumstances the legislature has
implicitly ordained that such an agency is a proper party
litigant, i.e., that it has “standing.”

10
 In that case, the Supreme Court considered the Pennsylvania Game
Commission’s statutory authority under the Game and Wildlife Code,8 and
concluded that it “has a substantial interest in the lands and wildlife under its
control. This alone would be sufficient to give it standing to legally challenge any
action which allegedly would have an adverse impact on those interests.” 555
A.2d at 816. In addition, the Supreme Court noted that a specific provision of the
Dam Safety and Encroachments Act (DSEA) “expressly gives the Commission the
power to enforce th[at statute] where a violation of it would adversely impact upon
the property under the Commission’s control.” Id. On this alternate basis, the
Supreme Court “conclude[d] that the Commission had standing to raise the DSEA
in its challenge to [the Department of Environmental Resources’9] issuance of [a]
solid waste permit in this case.” Id.
The General Assembly has expressly conferred upon DEP the
authority to enforce The Clean Streams Law. See Section 1901-A(20) of The
Administrative Code of 192910 (“The Department of Environmental Resources
shall . . . continue to exercise the powers and perform the duties by law heretofore
vested in and imposed upon . . . [t]he Department of Health by the act . . . known
as ‘The Clean Streams Law[.]’”). Specifically, under Section 5(5) of The Clean
Streams Law, DEP has the power to “[r]eview and take appropriate action on all

8
34 Pa. C.S. §§101-2965.

9
DEP was formerly named the Department of Environmental Resources. Adams
Sanitation Co. v. Pennsylvania Department of Environmental Protection, 683 A.2d 981, 982 n.1
(Pa. Cmwlth. 1996), aff’d on other grounds, 715 A.2d 390 (Pa. 1998).

10
Act of April 9, 1929, P.L. 177, as amended, added by Act of December 3, 1970, P.L.
834, 71 P.S. §510-1(20).

11
permit applications submitted pursuant to the provisions of [The Clean Streams
Law] and to issue, modify, suspend, limit, renew or revoke permits pursuant to
[The Clean Streams Law] and to the rules and regulations of the [DEP].” 35 P.S.
§691.5(5).
However, as noted above, DEP’s interest herein is merely prospective,
based on its concern that EHB’s decision in this matter will enshrine the bad faith
standard as the appropriate standard to be applied in all similar costs and fees
application cases in the future. See, e.g., DEP’s Answer to Application ¶24
(“EHB’s decision establishes precedent to be applied in future fees litigation under
Section 307(b). Given the substantial impact the EHB’s decision will have on
attorney’s fees litigation, [DEP] has an immediate need to determine the proper
standard to apply.”).
The competing fee applications herein were filed by, and directly
affected, only Objectors and Sunoco; regardless of EHB’s decision, there was no
possibility that EHB would have imposed additional costs and fees on DEP in
addition to those that it already agreed to as part of its settlement agreement with
Objectors. Thus, neither the traditional concept of standing, nor the legislatively
established standing outlined above, is broad enough to encompass a challenge
rooted solely in the potential, prospective effects of the disposition of a fee
application under The Clean Streams Law between private parties where, as here,
DEP’s authority or actions under The Clean Streams Law or the award of costs and
fees against DEP thereunder are not implicated. Accordingly, the Application to
Quash is granted and DEP’s appeal is quashed.

12
 II.
Turning to the merits of Objectors’ appeal, Objectors first note that
the standard for determining whether to award costs and fees to a party where a
matter has been resolved without a decision on the merits is the “catalyst test,” in
which:

(1) the applicant must show that the opposing party
provided some of the benefit the fee-requesting party
sought in the underlying suit, (2) the applicant must show
that the suit stated a genuine claim, and (3) the applicant
must show that the suit was a substantial or significant
reason why the opposing party, voluntarily or otherwise,
provided the benefit or partial benefit that the fee
requesting party sought in the underlying suit.
Objectors’ Brief at 9-10 (quoting Upper Gwynedd Towamencin Municipal
Authority v. Department of Environmental Protection, 9 A.3d 255, 264-65 (Pa.
Cmwlth. 2010)). Objectors argue that bad faith is not the only “workable”
standard for this type of scenario, and that EHB erred by not using the catalyst test
to evaluate the Organizations’ fee application. Id. at 10-13. Moreover, Objectors
state that EHB’s use of the bad faith standard is, under the circumstances, not
supported by the plain language of Section 307(b) of The Clean Streams Law, case
law, or public policy considerations. Id. at 14-15, 20-24. Contrary to EHB’s
interpretation, Section 307(b) should be construed as neither requiring third-party
appellants to prove bad faith conduct to recover costs and fees, nor mandating that
EHB should review DEP’s and permittees’ actions using different standards when
considering a fee application. Id. at 16-20.
Objectors then argue that the EHB majority misinterpreted Lucchino,
asserting that “[t]he question Lucchino resolved was not whether bad faith was the
right standard, but whether fees could be awarded against an appellant at all,” and

13
that “[EHB] misunderstands the holding in Lucchino, which did not require or set a
new standard but merely affirmed a fee award against an appellant.” Objectors’
Brief at 25. According to Objectors, the EHB majority’s concerns about
permittees’ due process rights was entirely misplaced, especially because Lucchino
did not mention due process concerns. Objectors’ Brief at 26. Furthermore,
Objectors point out that

[t]he [“]chilling effect[”] the [Lucchino] Court . . . was
primarily concerned about is one that would
disincentivize bringing meritorious appeals, not
defending against them. 809 A.2d at 270. Permittees,
being the beneficiary of the permit, will always have an
interest in defending the permit. Lucchino also concerns
guarding against frivolous suits, id., but that is not an
issue here.
Id.
In contrast, Sunoco asserts that EHB appropriately exercised its
discretion in electing to apply a bad faith standard in evaluating the fee
applications, rather than the catalyst test, arguing that this decision was supported
by both case and statutory law. Sunoco’s Brief at 17-36. In addition, Sunoco
highlights its lack of involvement in the settlement between DEP and Objectors,
through which DEP agreed to revise its permit review process and which effected
no changes upon Sunoco’s aforementioned permits. Id. at 34-35.
Also, according to Sunoco, a bad faith standard is warranted for
several reasons related to public policy considerations. First, it is DEP’s statutory
responsibility to enforce The Clean Streams Law. Sunoco’s Brief at 38-39.
Second, on appeal, EHB reviews DEP’s actions, rather than those of the permittee.
Id. at 39-40. Third, the catalyst test is fact-intensive and difficult to consistently
apply. Id at 40-41. Sunoco contends that using the catalyst test in this kind of

14
scenario would result in a greatly increased workload for EHB and would
discourage settlements. Id. at 41-44. Sunoco claims that the catalyst test would be
especially inappropriate for use here, because the complexity of this matter would
require the EHB to conduct a lengthy and involved inquiry to determine the
reasons for each of the actions taken and decisions made by the parties. Id. at 44-
46.
Initially, as this Court has explained:

Our review of EHB determinations under Section
307(b) of The Clean Streams Law is limited to
determining whether the EHB abused its discretion.
Solebury Township v. Department of Environmental
Protection, [928 A.2d 990, 997 n.8 (Pa. 2007)]. In
Kwalwasser [v. Department of Environmental Resources,
569 A.2d 422, 424 (Pa. Cmwlth. 1990),11] we noted that
our disagreement with the EHB’s reasoning or result is

11
As the Pennsylvania Supreme Court has explained:

In cases involving both Section 307 and Section 4(b) [of the
Surface Mining Conservation and Reclamation Act, Act of May
31, 1945, P.L. 1198, as amended, 52 P.S. §1396.4(b), superseded,
27 Pa. C.S. §7708,] the EHB explained that, to determine whether
an award of attorneys’ fees is appropriate, courts have applied an
analysis that has become known as the Kwalwasser test, according
to which “(1) a final order must have been issued; (2) the applicant
for the fees and expenses must be the prevailing party; (3) the
applicant must have achieved some degree of success on the
merits; and (4) the applicant must have made a substantial
contribution to a full and final determination of the issues.” Big B.
Mining Co. v. Department of Environmental Resources, [624 A.2d
713, 715 (Pa. Cmwlth. 1993)] (citing [Kwalwasser]). The EHB
determined that it was appropriate to apply this test to the present
matter, as, in its view, there was no reason to apply different
criteria for petitions solely under Section 307.

Solebury Township, 928 A.2d at 995.

15
 not sufficient ground to overturn the EHB’s decision.
We may not substitute our judgment for that of the EHB.
[Id.] Rather, “[a]n abuse of discretion occurs if, in
reaching a conclusion, the law is overridden or
misapplied or the judgment exercised is manifestly
unreasonable or is the result of partiality, prejudice, bias,
or ill will.” Luzerne County Children & Youth Services
v. Department of Human Services, 203 A.3d 396, 398
(Pa. Cmwlth. 2019).
Sierra Club v. Department of Environmental Protection, 211 A.3d 919, 924-25
(Pa. Cmwlth. 2019).
As indicated above, in disposing of the request for costs and fees, the
EHB majority relied upon Lucchino, in which the Supreme Court affirmed EHB’s
use of a bad faith standard in determining whether to impose an award of costs and
fees against a private individual objector. The Court stated, in relevant part:

Although the EHB recognized that a citizen has a
right to challenge agency actions that conflict with the
law and directly affect the citizen, it properly found that
the appeal here was an abuse of the administrative
adjudicatory system because it did not challenge the
[DEP]’s action, but was merely an attack on agency
employees and officials. Where, as here, the record
supports a tribunal’s finding of fact that the conduct of
the party was dilatory, obdurate, vexatious, or in bad
faith, this Court will not disturb an award of counsel fees
in the absence of an abuse of discretion. Township of
South Strabane v. Piecknick, [686 A.2d 1297 (Pa. 1996)]
(awarding counsel fees appropriate if record supports
finding of fact that the conduct of the party was dilatory,
obdurate, or vexatious). We find no abuse of discretion
in this instance and an award of counsel fees is
appropriate. We do not reach this decision lightly for, as
[the objector] reminds us, any grant of attorney’s fees
against an individual litigant in a suit against his
government has a potential “chilling effect” on the
willingness of the ordinary citizen to pursue resolution of
his disputes in the courts. However, recognizing that we
must strike a delicate balance, it is equally important that
16
 this phrase not be employed to defeat the protections
against frivolous suits afforded to a defendant.
809 A.2d at 269 (footnotes omitted).
Additionally, in Solebury Township, two townships sought review of
EHB’s order denying their request for costs and fees from DEP and the
Department of Transportation (PennDOT), as a governmental permittee, in which
EHB employed the catalyst test. EHB determined that the townships did not
prevail in the matter as required by that test because DEP had rescinded the
contested Section 401 Certifications under The Clean Water Act on PennDOT’s
request, and the case was ultimately dismissed as moot. In remanding the matter,
the Court stated:

[G]iven Pennsylvania’s strong policy to justly
compensate parties who challenge agency actions by
liberally interpreting fee-shifting provisions, see
Lucchino, [809 A.2d at 269], we agree with the
[t]ownships that the EHB’s narrow application of the
Kwalwasser criteria in the present matter was erroneous.

More specifically, the broad grant of discretion to
the EHB in awarding attorney’s fees under Section 307
renders [EHB’s and PennDOT’s] argument that a formal
judgment is necessary to a finding that a party has
prevailed with some degree of success on the merits
untenable. Instead, we agree with the Commonwealth
Court that the practical relief sought by the [t]ownships
should be considered when characterizing them as
prevailing parties for purposes of the Kwalwasser test.
Accord Buckhannon [Board & Care Home, Inc. v. West
Virginia Department of Health & Human Resources, 532
U.S. 598, 633 (2001)] (Ginsburg, J., dissenting)
(“[W]here the ultimate goal is not an arbiter’s approval,
but a favorable alteration of actual circumstances, a
formal declaration is not essential.”). In addition, the
EHB’s exclusive focus on the dismissal of the case as
moot, without conducting a hearing or making further
factual findings and legal conclusions, does not justify its
17
 holding that the [t]ownships did not achieve some degree
of success on the merits and did not make a substantial
contribution to the full and final determination of the
issues.

Finally, as Lucchino makes clear, the EHB may, in
its discretion, award attorney’s fees under Section 307
solely on the basis of a finding of bad faith or vexatious
conduct, which is supported by the record, without
reference to the Kwalwasser criteria. See Lucchino, [809
A.2d at 269-70]. In this regard, however, we agree with
[EHB and PennDOT] that the Commonwealth Court
erred by characterizing [their] conduct as vexatious on
the undeveloped record before it. . . .

Since we conclude that the EHB’s application of
the Kwalwasser criteria in the present matter was too
narrow in view of the broad language of Section 307 and
the public policy favoring liberal construction of fee-
shifting provisions, we cannot determine the propriety of
the EHB’s denial of the [t]ownships’ motion for
attorney’s fees under Section 307 on the present record.
Accordingly, the order of the Commonwealth Court is
vacated, and the matter is remanded to the EHB for
further proceedings consistent with the above.
928 A.2d at 1004-05.
Based on the foregoing Supreme Court analyses, and contrary to
Objectors’ assertions, the catalyst test is not the sole and exclusive standard that
EHB may employ in disposing of a request for costs and fees against a permittee
under Section 307(b) of The Clean Streams Law. Indeed, we have specifically
recognized that EHB’s “broad discretion includes the authority to adopt standards
by which [it] will evaluate applications for costs and fees.” Sierra Club, 211 A.3d
at 926. In the instant case, it was entirely within EHB’s discretion, and eminently
appropriate, to apply the instant bad faith standard in deciding whether or not to
impose costs and fees upon a private party permittee. In sum, “our disagreement

18
with the EHB’s reasoning or result is not sufficient ground to overturn the EHB’s
decision,” and “[w]e may not substitute our judgment for that of the EHB” in this
regard. Id. (citing Kwalwasser).
Accordingly, we grant Sunoco’s Application to Quash DEP’s appeal;
we quash DEP’s appeal; and we affirm EHB’s order.

MICHAEL H. WOJCIK, Judge

Judge Fizzano Cannon did not participate in the decision of this case.

19
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clean Air Council, The Delaware :
Riverkeeper Network, and :
Mountain Watershed Association, Inc., :
:
Petitioners :
:
v. : No. 309 C.D. 2019
:
Commonwealth of Pennsylvania, :
Department of Environmental :
Protection, :
:
Respondent :

Department of Environmental :
Protection, :
:
Petitioner :
:
v. : No. 313 C.D. 2019
:
Clean Air Council, The Delaware :
Riverkeeper Network, Mountain :
Watershed Association, Inc. :
and Sunoco Pipeline, L.P., :
:
Respondents :

ORDER
AND NOW, this 16th day of February, 2021, Sunoco Pipeline, L.P.’s
Motion to Quash is GRANTED; the Department of Environmental Protection’s
above-captioned appeal is QUASHED; and the order of the Commonwealth of
Pennsylvania, Department of Environmental Protection is AFFIRMED.

__________________________________
MICHAEL H. WOJCIK, Judge
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clean Air Council, The Delaware :
Riverkeeper Network, and Mountain :
Watershed Association, Inc., :
Petitioners :
:
v. : No. 309 C.D. 2019
:
Commonwealth of Pennsylvania, :
Department of Environmental :
Protection, :
Respondent :
:
Department of Environmental :
Protection, :
Petitioner :
:
v. : No. 313 C.D. 2019
: Argued: June 10, 2020
Clean Air Council, The Delaware :
Riverkeeper Network, Mountain :
Watershed Association, Inc. and :
Sunoco Pipeline, L.P., :
Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge

CONCURRING OPINION
BY JUDGE BROBSON FILED: February 16, 2021

I join in Part I of the majority opinion, dismissing the appeal of the
Department of Environmental Protection (DEP) for lack of standing. I concur in the
result of Part II, that being affirmance of the decision of the Environmental Hearing
Board (EHB) to deny the request by the Clean Air Council, The Delaware
Riverkeeper Network, and Mountain Watershed Association, Inc. (collectively,
Objectors) for an order directing Sunoco Pipeline, L.P. (Sunoco) to pay the costs and
fees that Objectors incurred in the administrative proceeding below.
I write separately for two reasons. First, I believe that Amicus Curiae the
Pennsylvania Chamber of Business and Industry (Pa. Chamber) highlights a
potential constitutional infirmity with respect to the fee-shifting provision at issue in
this case—Section 307(b) of The Clean Streams Law.1 In relevant part,
Section 307(b) provides: “The [EHB], upon the request of any party, may in its
discretion order the payment of costs and attorney’s fees it determines to have been
reasonably incurred by such party . . . .” 35 P.S. § 691.307(b) (emphasis added).
There are no standards in this section or elsewhere to cabin the EHB’s discretion.
Without standards, Section 307(b) of The Clean Streams Law may run afoul of
Article II, Section 1 of the Pennsylvania Constitution, which vests within the General
Assembly the exclusive authority to make laws.2
Where, in the exercise of its legislative power, the General Assembly
delegates discretion to an agency to administer a particular law, two fundamental
limitations must be satisfied for the law to withstand constitutional scrutiny:
“First, . . . the General Assembly must make ‘the basic policy choices,’ and[,]
second, the legislation must include ‘adequate standards which will guide and
restrain the exercise of the delegated administrative functions.’” Protz v. Workers’

1
Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.307(b).
2
“The legislative power of this Commonwealth shall be vested in a General Assembly,
which shall consist of a Senate and a House of Representatives.” Pa. Const. art. II, § 1.

PKB-2
Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827, 834 (Pa. 2017) (quoting
Pennsylvanians Against Gambling Expansion Fund, Inc. v. Cmwlth., 877 A.2d 383,
418 (Pa. 2005)). There is a substantial legal question as to whether either of these
fundamental limitations are met with respect to the EHB’s discretion to award fees
under Section 307(b) of The Clean Streams Law. Nonetheless, the majority
appropriately avoids addressing the issue in this case for two reasons. First, it is not
among the issues presented to us by the parties on appeal. Second, the issue would
more appropriately be addressed in a challenge to an EHB award of fees under
Section 307(b) of The Clean Streams Law.
Putting aside the utter lack of any statutory standards, we must still review the
EHB’s exercise of discretion for abuse. See Solebury Twp. v. Dep’t of Env’t Prot.,
928 A.2d 990, 997 n.8 (Pa. 2007). “An abuse of discretion is not merely an error of
judgment, but if in reaching a conclusion the law is overridden or misapplied or the
judgment exercised is manifestly unreasonable, or the result of partiality, prejudice,
bias, or ill will, as shown by the evidence or the record, discretion is abused.”
Commonwealth v. Spiewak, 617 A.2d 696, 699 n.4 (Pa. 1992) (emphasis added).
Here, the EHB adopted a “bad faith standard,” concluding that fees against a
permittee would only be warranted where the permittee engaged in offensive
conduct in the course of defending its appeal before the EHB. The majority holds
that this bad faith standard was “eminently appropriate” in this case.
(Clean Air Council v. Dep’t of Env’t Prot., ___ A.3d ___, ___ (Pa. Cmwlth.,
Nos. 309 and 313 C.D. 2019, filed February 16, 2021), slip op. at 18.) While I agree,
as the EHB is operating without legislative guardrails, I see no reason why
“bad faith” must be the only test. I, therefore, cannot endorse it as such with

PKB-3
respect to the exercise of the EHB’s discretion under Section 307(b) of The Clean
Streams Law.
Rather, I would simply affirm the EHB’s decision because there is absolutely
no basis in the record upon which the EHB could have exercised its discretion below
in such a way as to compel Sunoco to pay Objectors’ legal fees under
Section 307(b) of The Clean Streams Law. Sunoco was not a party to the settlement
agreement between Objectors and DEP that essentially ended Objectors’ appeals.
Moreover, Sunoco gave up nothing in the settlement or otherwise. Sunoco kept its
permits, unaltered, as if Objectors had not even filed their appeals with the EHB.
Under such circumstances, it would be manifestly unreasonable to order Sunoco, or
any permittee, to pay Objectors’ attorney’s fees. For this reason, I concur in the
majority’s decision to affirm the EHB’s order.

P. KEVIN BROBSON, Judge

Judge Cohn Jubelirer joins in this concurring opinion.

PKB-4
 IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clean Air Council, The Delaware :
Riverkeeper Network, and Mountain :
Watershed Association, Inc., :
Petitioners :
:
v. : No. 309 C.D. 2019
:
Commonwealth of Pennsylvania, :
Department of Environmental :
Protection, :
Respondent :

Department of Environmental :
Protection, :
Petitioner :
:
v. : No. 313 C.D. 2019
:
Clean Air Council, The Delaware :
Riverkeeper Network, Mountain :
Watershed Association, Inc. and :
Sunoco Pipeline, L.P., :
Respondents : ARGUED: June 10, 2020

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge
HONORABLE RENÉE COHN JUBELIRER, Judge
HONORABLE P. KEVIN BROBSON, Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge

CONCURRING AND DISSENTING OPINION
BY JUDGE CEISLER FILED: February 16, 2021

I join the majority with regard to its disposition of Sunoco Pipeline, L.P.’s
(Sunoco) Application to Quash the Department of Environmental Protection’s
(DEP) appeal. However, I must part ways from the majority regarding its
affirmation, in full, of the Environmental Hearing Board’s (EHB) February 19, 2019
decision. As our Court has previously held:
Under Section 307(b) of The Clean Streams Law, [Act of
June 22, 1937, P.L. 1987, as amended, 35 P.S. §
691.307(b),] the EHB has broad discretion to award or
deny attorneys’ fees and costs in a particular proceeding.
[Solebury Twp. v. Dep’t of Env’t Prot., 928 A.2d 990,
1003 (Pa. 2007)]. This broad discretion includes the
authority to adopt standards by which the EHB will
evaluate applications for costs and fees. Id. at 1004. Such
standards, however, must be consistent with
“Pennsylvania’s strong public policy to justly compensate
parties [that] challenge agency actions by liberally
interpreting fee-shifting provisions.” Id.
Sierra Club v. Dep’t of Env’t Prot., 211 A.3d 919, 926 (Pa. Cmwlth. 2019); see also
Lucchino v. Dep’t of Env’t Prot., 809 A.2d 264, 269 (Pa. 2002) (quoting Tunison v.
Com., 31 A.2d 521, 523 (Pa. 1943)) (“For reasons of public policy, Pennsylvania
courts have construed . . . statutory sections [like Section 307(b)] liberally ‘to justly
compensate parties who have been obliged to incur necessary expenses in
prosecuting lawful claims or in defending against unjust or unlawful ones.’”).
Requiring a showing of bad faith in this kind of situation does not square with
the public policy purpose underpinning Section 307(b)’s fee-shifting language. To
state the obvious, a permittee necessarily plays a critical role in the permitting
process, for without an initial permit application, there would be no reason for
subsequent litigation initiated by a third party. It does not therefore seem reasonable
that, in theory, the DEP could be saddled with fees and costs in response to
inadvertent mistakes or good faith, negotiated compromises or settlements, while a
permittee could get off scot-free under similar circumstances unless it has conducted
itself in a dilatory, obdurate, or vexatious way.

EC - 2
 Furthermore, Lucchino is distinguishable from the instant matter. While the
Supreme Court took no issue with the EHB’s use of a bad faith standard in that
matter, the context was different. There, the EHB was faced with a private
individual, whose challenge to the DEP’s issuance of various permits was nothing
more than a malicious attack upon the DEP and the affected permittee. Lucchino,
809 A.2d at 269. “[T]he EHB recognized that a citizen has a right to challenge
agency actions that conflict with the law and directly affect the citizen” and therefore
elected to require a higher burden of proof to justify an award of costs and fees in
such a situation. Id. at 269-70. Implicitly, the EHB recognized that to do otherwise,
by setting a lower bar for such awards, would likely dissuade people from exercising
their right to challenge permit approvals, due to the prospective financial
repercussions. The Supreme Court agreed with the EHB, stating:
[A]ny grant of attorney’s fees against an individual litigant
in a suit against his government, has a potential “chilling
effect” on the willingness of the ordinary citizen to pursue
resolution of his disputes in the courts. However,
recognizing that we must strike a delicate balance, it is
equally important that this [concern] not be employed to
defeat the protections against frivolous suits afforded to a
defendant.
Id. at 270. Here, however, there is no concern about impinging upon such rights, as
it is a permittee, i.e., Sunoco, rather than an objector, which is the subject of the at-
issue fee application. As such, a standard lower than “bad faith” in this situation
would have no effect on Sunoco’s ability or desire to challenge permitting actions
taken by the DEP. This lower standard could theoretically impact a permittee’s
initial decision to exercise its property rights, due to a permittee’s need to factor in
the possibility, however remote, of such costs and fees. Such a concern is
nevertheless too attenuated to justify using a bad faith requirement, as there is no

EC - 3
guarantee that a permit application will be approved upon review by the DEP (a
review process that should minimize the risk of litigation, if done properly), or that
a given permitting decision will be subsequently challenged by a third party.
The EHB’s use of a bad faith standard to evaluate Clean Air Council, The
Delaware Riverkeeper Network, and Mountain Watershed Association, Inc.’s joint
fee application was thus an abuse of discretion. It follows, then, that the EHB’s
February 19, 2019 decision should be vacated in part, as well as that this matter
should be remanded to the EHB for further proceedings, so that it can use a proper
standard to evaluate this fee application. Therefore, I respectfully dissent from the
majority, to the extent it concluded otherwise.

__________________________________
ELLEN CEISLER, Judge

EC - 4