Janine Bauer, recently won $76,243 in attorney fees in a Pennsylvania Clean Streams Law case in which she represented Buckingham Township against Penn DOT and PA DEP. The Pennsylvania Environmental Hearing Board’s decision to award attorney fees in this case was precedent setting, according to the Board. It sent a clear message to Pennsylvania municipalities that litigation costs need not be a deterrent in pursuing legitimate challenges to DEP actions..

Two Pennsylvania townships – Buckingham and Solebury – challenged a federal Clean Water Act certification issued by PA DEP to PennDOT for the Route 202 Expressway project. This certification allows a project to proceed based on the “assurance” that it will comply with water quality standards, although PennDOT had not actually submitted evidence that it would comply, which the townships argued was required under the stricter state-level Clean Streams Law.

During the first year of the litigation, just before significant motions were to be argued before the Environmental Hearing Board en banc, PennDOT asked DEP to rescind the certification, and DEP agreed. Both agencies then claimed the townships’ challenge was moot (obsolete) because of DEP’s rescission of the certification.

The townships appealed the mootness ruling, and sought attorney fees under Section 307 of the Clean Stream Law, claiming that they won because the challenged certification no longer existed. They won a remand from the Pennsylvania Supreme Court, which characterized them as successful and instructed the Hearing Board to develop a factual record on the question of the award of attorneys’ fees. Janine tried the case on the merit of awarding attorneys fees against the agencies’ lawyers at the Environmental Hearing Board in July, with Paul A. Logan, Esq., who represented Solebury. In early December, the Board ruled that the townships were partly successful on the merits, based on the agencies’ rescission of the certification, and awarded all of the townships’ attorney fees for the appeal and trial (after remand) phases of the case.

The Board stated that the townships’ actions had,”changed, or at least refined the law of fee shifting, they have set a precedent that will encourage bona fide appeals of DEP actions…. Hopefully more DEP errors will be caught and rectified now that appellants know that they will not necessarily lose their shirts in the process of prosecuting legitimate concerns.” The Board continued, “As a result of the Townships’ dogged perseverance, the Pennsylvania Supreme Court has sent out a clear message that that is not the way it is supposed to be.”