July 7, 2021

Report: Energy Sector in Limbo over Permitting, ESG and Climate Policies

Joseph Markman
Hart Energy

The Babst Calland law firm’s annual report includes a chat with Sen. Joe Manchin and an assessment of the impact of President Biden’s government-wide climate approach.

President Joe Biden’s ambition to entirely wean the U.S. from fossil fuels by 2035 is “unattainable, not doable,” Sen. Joe Manchin (D-W.Va.) told a Babst Calland law firm panel during a recent webinar. The recording is included in the firm’s annual energy industry report, released June 30.

“There’s no way that we can eliminate our way to a cleaner climate,” the chairman of the Senate Committee on Energy and Natural Resources said, noting that the country could not make a sufficient worldwide difference because other countries will not follow its lead in cutting oil, gas and coal from the global energy mix. “Not going to happen.”

In its report, Pittsburgh-based Babst Calland focused on how the oil and gas industry, recovering from the economic impacts of the COVID-19 pandemic, is at an inflection point as it awaits the full impact of President Joe Biden’s climate-centric policies and the emergence of ESG (environmental, social and governance) concerns in investing decisions.

Manchin told the attorneys he was concerned about the federal permit approval process, and how the sluggish system could hinder the oil and gas industry’s—and the country’s—ability to build the infrastructure necessary to put the energy transition into effect. The senator has supported legislation to speed the permitting process.

“I don’t know any other way to get it done,” Manchin said. “We might not live long enough to see half of it being built if we don’t do something.”

The report addressed regulatory delays, as well, noting how they continue to threaten major pipeline projects in the Appalachian region. …

July 2, 2021

Pennsylvania DEP Releases New PFAS Sampling Data and Proposes Additional Actions to Address “Forever” Chemicals

Environmental Alert

(by Matt Wood)

On June 3, 2021, the Wolf administration released the complete results of sampling for perfluoroalkyl and polyfluoroalkyl substances (PFAS) by the Pennsylvania Department of Environment Protection (PADEP) from certain public drinking water systems located throughout the Commonwealth.  PFAS, a “family” of manmade chemicals in use since the 1940s, have myriad applications in consumer, commercial, and industrial products.  More recently, PFAS have been discovered in various environmental media (e.g., drinking water sources), plants, animals, and humans.  Due to their persistence in the environment – they do not tend to break down naturally – PFAS have been called “forever” chemicals and some research suggests that exposure to PFAS can cause various adverse health effects.

Originally initiated in June 2019, the PADEP-led sampling effort targeted public drinking water systems within a half mile of potential PFAS sources (e.g., manufacturing, fire training, and military facilities).  PADEP also sampled outside of the half-mile radius of potential sources to establish a baseline.  Samples collected in 2019 were analyzed for six PFAS chemicals, but those collected in 2020 and 2021 were analyzed for 18 PFAS chemicals using U.S. Environmental Protection Agency (EPA) Method 537.1 (updated November 2018).  As part of the 2020 and 2021 sampling events, PADEP resampled the 2019 sites in order to obtain additional occurrence data.

Of the 18 PFAS chemicals analyzed from the 412 total samples, only eight were found at the sampled sites: PFOS, PFOA PFNA, PFHxS, PFHpA, PFBS, Perfluorohexanoic acid (PFHxA), and Perfluoroundecanoic acid (PFUnA).  PFOA and PFOS were the most common, being present at 112 and 103 sites, respectively.  In only two locations, however, did the combined PFOA/PFOS concentration exceed the combined PFOA/PFOS 70 parts per trillion (ppt) Health Advisory Level (HAL) set by EPA, which is intended to identify the concentration of PFOA/PFOS in drinking water at or below which adverse health effects are not expected to occur over a lifetime of exposure.  …

July 1, 2021

Guidance on steps to protect your business against cyberattacks

Smart Business 

(by Sue Ostrowski featuring Ashleigh Krick)

Recent high-profile cybersecurity breaches have highlighted how vulnerable even the largest businesses are to disruption. But even the smallest of businesses face risks, says Ashleigh Krick.

“Organizations may think they are not at risk and do not have valuable information, but they should think again,” says Krick, an associate at Babst Calland. “It does not matter what information you have when a hacker just wants money. It’s not just about data; it’s also about shutting down your business to force you to pay a ransom.”

Smart Business spoke with Krick about steps every business can take to protect itself.

How have recent cyberattacks drawn attention to the vulnerability of businesses?

Recent cyberattacks on Colonial Pipeline and JBS Foods have demonstrated the cyber vulnerabilities of even our nation’s most critical industries. In May, Colonial Pipeline fell prey to a ransomware attack, forcing it to halt transportation of gasoline and other fuels on the largest refined products pipeline on the East Coast. The effect was felt by everyone along the East Coast, as disruption to gasoline supply caused consumer panic and gasoline prices to skyrocket.

Not a month later, JBS Foods, the world’s largest processor of fresh beef and pork, was attacked by ransomware, causing its plants to shut down and rendering the business incapable of processing meat. We are still seeing effects from that, which could disrupt the U.S. market and international markets.

In the aftermath of these attacks, the federal government became immediately involved in how businesses were responding to ransomware attacks and questioning whether mandatory cybersecurity standards in the most critical industries are needed. …

July 1, 2021

PADEP Issues Guidelines for Implementing Area of Review Regulatory Requirement for Unconventional Wells

RMMLF Mineral and Energy Law Newsletter

(By Joseph K. Reinhart, Sean M. McGovern & Matthew C. Wood)

On September 4, 2021, the Pennsylvania Department of Environmental Protection (PADEP) published notice of its final technical guidance titled “Guidelines for Implementing Area of Review (AOR) Regulatory Requirement for Unconventional Wells,” No. 800-0810-001 (Sept. 4, 2021) (AOR Guidance). See 51 Pa. Bull. 5757 (Sept. 4, 2021). The AOR Guidance clarifies the AOR as “1,000 feet in all directions” from the plan view projections for horizontal and vertical unconventional wells. See 25 Pa. Code § 78a.52a(a). Vertical buffer distance for offset wells located within the AOR is 1,500 feet for all unconventional wells. See 25 Pa. Code § 78a.73(c). The final guidance document was effective upon date of publication, replacing PADEP’s 2016 guidance. Operators should reference the AOR Guidance regarding well placement and offset wells, for evaluating and monitoring nearby wells to prevent communication between wells, and for reporting and resolving incidents. The AOR Guidance also serves as an overview of PADEP’s well adoption permitting process.

Final issuance of the AOR Guidance followed a 60-day public comment period during which PADEP received approximately 55 comments from 10 commenters and made several changes to the draft version. Key changes to the AOR Guidance, as identified in the Pennsylvania Bulletin, include:

  • clarifying the ability of operators to survey an area that extends beyond the prescriptive AOR regulatory language;
  • removing language assigning responsibility for recently plugged offset wells to the operator who had completed the plugging;
  • relocating language pertaining to briefing the hydraulic fracturing operations team about adjacent operator coordination;

    • …

October 1, 2021

PADEP Issues Draft Technical Guidance Regarding Synthetic Liners and Caps at Coal Refuse Disposal Areas

RMMLF Energy Law Newsletter

(By Joseph K. Reinhart, Sean M. McGovern, Gina N. Falaschi and Christina Puhnaty)

On August 21, 2021, the Pennsylvania Department of Environmental Protection (PADEP) issued a draft revision of its technical guidance that explains PADEP’s considerations when evaluating liners and cap systems installed at coal refuse disposal areas pursuant to 25 Pa. Code chs. 86, 88, and 90. See PADEP, Draft TGD No. 563-2112-656, “Liners and Caps for Coal Refuse Disposal Areas” (Aug. 21, 2021) (Draft TGD). These systems of liners and protective caps, called “barrier layers,” are intended to prevent adverse impacts to groundwater and surface water and to prevent precipitation from coming into contact with coal refuse by preventing or reducing water migration through the refuse material. See 25 Pa. Code §§ 90.50(a)–(b), .101–.102, .122. As noted in the preamble for the rulemaking that established section 90.50(b), “[t]his statutory requirement was intended to ensure that precipitation contacting the coal refuse is kept to a minimum, thereby reducing the volume of water needing treatment after the site is closed.” 31 Pa. Bull. 3735, 3736 (July 14, 2001). PADEP noted that this draft technical guidance document, when finalized, would not mandate that existing structures be replaced or retrofitted.

PADEP’s current guidance serves as a guide for the use of liners for impoundments, stockpiles, and coal refuse disposal areas. See PADEP, TGD No. 563-2112-656, “Liners and Caps for Coal Refuse Disposal Areas” (July 17, 2021). PADEP’s draft revision of this technical guidance is significantly different from the current guidance in that the revised draft guidance incorporates protective caps and emphasizes PADEP’s preference for barrier layers constructed using synthetic material rather than clay. …

July 1, 2021

Supreme Court of Pennsylvania Dismisses Appeal of Unconventional Drilling Zoning Approvals

RMMLF Mineral and Energy Law Newsletter

(By Joseph K. Reinhart, Sean M. McGovern, Gina N. Falaschi and Matthew C. Wood)

On June 22, 2021, a few weeks after hearing oral arguments, the Supreme Court of Pennsylvania dismissed as having been improvidently granted appeals by environmental advocacy group Protect PT to overturn two Penn Township Zoning Hearing Board (Board) decisions to grant special exceptions for gas well development in the township. Protect PT v. Penn Twp. Zoning Hearing Bd., 252 A.3d 600 (Pa. 2021) (mem.).

The companion cases originated from the Board’s 2018 decisions to approve special exception applications by Olympus Energy LLC (Olympus) to develop oil and gas operations at two well pads in Penn Township, Westmoreland County, Pennsylvania. In the hearings, Protect PT asserted that the cumulative impacts of the gas well development near residential neighborhoods could increase the probability of negative environmental, safety, and health impacts in the community. The Board ultimately approved Olympus’s applications, concluding the proposed development satisfied the requirements of the township’s zoning ordinance (subject to certain conditions) and that Protect PT failed to present sufficient, credible evidence to rebut the Board’s conclusion.

Protect PT first appealed the Board’s decisions to the Westmoreland County Court of Common Pleas, which denied the appeals and affirmed the Board’s decisions without taking additional evidence. Protect PT subsequently appealed to the Commonwealth Court of Pennsylvania. Before the commonwealth court, Protect PT argued that the Board capriciously disregarded the evidence presented to it in granting Olympus’s applications. See Protect PT v. Penn Twp. Zoning Hearing Bd., 238 A.3d 530 (Table), 2020 WL 3640001 (Pa. …

July 1, 2021

PADEP’s RGGI Rule Nears the End of the Regulatory Process

RMMLF Mineral and Energy Law Newsletter

(By Joseph K. Reinhart, Sean M. McGovern and Gina N. Falaschi)

Continuing from previous issues of this Newsletter, this report provides recent updates on the Pennsylvania Environmental Quality Board’s (EQB) proposed CO2 Budget Trading Program rulemaking, which would link Pennsylvania’s program to and implement the Regional Greenhouse Gas Initiative (RGGI) within the commonwealth beginning in 2022. See Vol. XXXVIII, No. 2 (2021), Vol. XXXVIII, No. 1 (2021), Vol. XXXVII, No. 4 (2020), Vol. XXXVII, No. 3 (2020), Vol. XXXVII, No. 2 (2020), Vol. XXXVII, No. 1 (2020), Vol. XXXVI, No. 4 (2019) of this Newsletter. RGGI is the country’s first regional, market-based cap-and-trade program designed to reduce carbon dioxide (CO2) emissions from the power sector. The proposed regulation would limit CO2 emissions from Pennsylvania’s fossil fuel-fired electric generating units with a nameplate capacity of 25 megawatts or greater that send more than 10% of their annual gross generation to the electric grid. The proposed initial emissions cap for Pennsylvania in 2022 is 78 million tons of CO2, which would decline annually.

The public comment period for the proposed rule ran from November 7, 2020, until January 14, 2021. The Independent Regulatory Review Commission (IRRC) released its comments on February 16, 2021. See Comments of the Independent Regulatory Review Commission, Environmental Quality Board Regulation #7-559 (IRRC #3274, CO2 Budget Trading Program (Feb. 16, 2021). The IRRC recommended that EQB (1) explain the choice to institute the program through regulation rather than legislation; (2) provide analysis of its statutory authority to enact the proposal; (3) consider recommendations from commentators on public health, safety, and welfare, economic or fiscal impact, and adequacy of data; …

June 30, 2021

The 2021 Babst Calland Report Highlights Legal and Regulatory Perspectives at a Transformational Time for the U.S. Energy Industry

Babst Calland published its 11th annual energy industry report: The 2021 Babst Calland Report – Legal & Regulatory Perspectives for the U.S. Energy Industry. Each of our nation’s energy sectors is impacted by local, state and federal policies, many of which are addressed in this inclusive report on legal and regulatory developments for the energy industry in the United States.

This edition features commentary from Senator Joe Manchin (D-WV), Chairman of the U.S. Senate Energy and Natural Resources Committee, who spoke with Babst Calland energy clients at a special briefing on June 25, 2021. A link to the webinar recording is available in this Report.

To request a copy of The 2021 Babst Calland Report, click here.

The Babst Calland Report represents the timely collective perspectives of more than 45 energy attorneys on the current state of the U.S. natural gas and oil, coal, and renewable energy sectors. For the first time, this Report is presented as an easy-to-navigate digital site featuring 12 sections, addressing the following key topics:

  • Business Outlook for the U.S. Energy Industry
  • Climate Change Initiatives from the Biden Administration
  • Pipeline & Hazardous Materials Safety Administration Priorities
  • Environmental Law Developments
  • Environmental Justice Issues
  • Appalachian Basin Regional Developments
  • Coal Mining Regulatory Changes
  • Expansion of the U.S. Renewable Energy Market
  • Real Estate & Land Use Developments
  • Litigation Trends
  • Changes in Employment & Labor Law
  • Emerging Technologies Affecting the Energy Industry

Joseph K. Reinhart, shareholder and co-chair of Babst Calland’s Energy and Natural Resources Group, said, “The energy industry, once again, is at an inflection point and a moment of resiliency as it experiences a rebound in pricing and recovers from the impact of the global pandemic. …

June 23, 2021

Commonwealth Court Considers Municipal Boundary Disputes

The Legal Intelligencer

(by Blaine Lucas and Anna Jewart)

This past May, a curio story made international news when a Belgian farmer moved a stone monument on his property by approximately 7.2 feet.  While this typically would have remained unknown, except to the farmer and perhaps to his neighbor, the farmer did not consider that the stone had been placed in 1819 to mark his home country’s border with France, and moving it resulted in an approximate 3,000 square foot loss of territory for the French.  Luckily, the change in location was quickly caught and resolved without international incident.  The quick discovery and resulting amicable resolution between the two nations was made possible in large part because the local Belgian municipality, Erquelinnes, had geo-localized the stones in 2019 for its 200th anniversary and knew exactly where it should have been.  A few days after the story went viral, the Pennsylvania Commonwealth Court addressed what happens when municipalities here misplace their historic markers and later disagree over the location of their common boundaries.  In Woodward Twp. Mun. Corp. of Clinton County, Pa. v. Dunnstable Twp. Mun. Corp. of Clinton County, Pa., Nos. 704 C.D. 2020, 733 C.D. 2020 (Pa. Cmwlth. May 12, 2021), disagreement over boundary stones and surveys dating back to 1844 resulted in a modern-day battle of the experts to determine exactly where the shared boundary of the two townships actually lies.

Although it was avoided by the farmer in Erquelinnes, wars and lawsuits are often fought over the location of boundaries, whether they are private, municipal, or international.  Consequently, Pennsylvania law provides certain protections for the agreed upon location of municipal boundaries, and establishes procedures for both how to change them willingly, and how to resolve disputes surrounding their location.  …

June 17, 2021

Talen Energy To Convert PJM Coal Plants to Battery Storage; Save Jobs, Tax Base

Pittsburgh, PA

Renewables Law Blog

(By Bruce Rudoy)

It’s no secret that coal plants have had trouble competing with cheaper renewables and natural gas in recent years. Unexpectedly low prices from PJM’s latest capacity auction spurred a fresh wave of retirement announcements this month. But Talen Energy has decided that rather than retire coal plants and walk away, it would convert those sites to be used for other renewable energy-related projects. While Talen promised in November 2020 to shut down roughly 5 gigawatts of coal capacity in the 2020s, the company wanted more of a comprehensive strategy for this transition.  “This is the first of hopefully many unit transitions from coal to lower-carbon sources and battery,” said Cole Muller, who oversees Talen’s fossil-powered fleet in the territory of regional transmission organization PJM. “It’s really about decarbonizing, …investing in the communities and continuing to provide opportunities for our people.” After that project, Talen plans to build a 1-gigawatt battery fleet in the next three to five years on its existing properties, using individual batteries as large as 300 megawatts. “If you just retire it, you have a significant loss to both jobs and the tax base, and the communities at large,” Muller said. Talen tapped battery developer Key Capture Energy to build a 20-megawatt system as a demonstration of the concept. That smaller size allows for a streamlined approval process, Muller noted. But the battery will act just like any other commercial power plant, bidding into PJM’s markets for capacity, ancillary services and energy arbitrage. Assuming that goes well, Talen can add up to another 115 megawatts of battery storage to fully utilize the coal plant’s grid connection capacity. …

June 11, 2021

Understanding legal challenges facing businesses today

Pittsburgh Business Times

(by Nick Keppler featuring Don Bluedorn)

During the past year, Babst Calland has been helping to navigate both the practical obstacles in the legal process and general anxiety among clients, said Donald C. Bluedorn II, managing shareholder of the downtown law firm, recognized for its work in environmental, energy and corporate law.

“It’s obviously an understatement to say the last year has been very challenging for all of us,” Bluedorn said in a conversation with the Pittsburgh Business Times. “Our clients have had to adapt in the face of the pandemic and its economic impacts, and of course, we did too.” Add to all of that, a new federal administration that commenced changes in energy policy and regulation in the name of climate change.

“There were a number of legal challenges that we had to work through quickly with clients. There were changes in the substantive legal area and the way things were done,” said Bluedorn. “For example, courts were closed. How do you maintain litigation and do discovery and engage with witnesses while courts are closed?” Our firm does a lot of environmental work. The offices that issue permits necessary for environmental testing were also temporarily delaying some of that work. In many cases, deadlines were suspended.

Like every other workplace, Babst Calland’s clients also faced sudden and jarring disruptions to the most basic aspects of their workplaces, including having a communal environment.

“Obviously, a number of our clients had direct issues associated with the pandemic,” said Bluedorn. Early on, these included questions of “how do they deal with people working at home and how do they decide who needs to be in the office and who doesn’t.”

Now many have moved on to “issues associated with when it is safe to come back and how to strike a balance in discussing the need to come back into the office while some employees may have reservations about coming back into the office. …

June 11, 2021

EPA’s proposed budget highlights Biden administration focus on environmental justice concerns

The PIOGA Press

(by Ben Clapp)

The proposed budget for fiscal year 2022 for the U.S. Environmental Protection Agency (EPA), submitted to Congress on May 28, provides important insights into the agency’s priorities in the coming years under the Biden administration. Broadly speaking, the proposed budget, which is the largest ever in absolute terms, emphasizes what the agency describes as “four cross-cutting priorities: Tackling the Climate Crisis through Science, Advancing Environmental Justice, Supporting State, Tribal and Local Partners and Expanding the Capacity of EPA.” These points of emphasis are generally consistent with expectations and with earlier environmental policies adopted by the Biden administration, including the executive order on “Tackling the Climate Crisis at Home and Abroad” (E.O. 14008).

While the agency priorities set forth in the proposed budget are perhaps not particularly surprising, the prominence in the budget of advancing environmental justice, a topic with potential impacts on the oil and gas sector, is unprecedented. (Note, for example, that the terms “environmental justice” or “EJ” appear more than 400 times in the EPA’s lengthy budget justification document, compared to just over 40 times in the fiscal year 2021 document.) While environmental justice considerations have been a component of EPA’s work since the 1990s, the Biden EPA is poised to bring it to the forefront of environmental decision-making. This heightened emphasis is also reflected in EPA Administrator
Michael Regan’s April 7 message to EPA staff, in which he stated that the agency would do more to address environmental justice concerns, including:

  • Strengthening enforcement of violations of cornerstone environmental statutes and civil rights laws in communities overburdened by pollution.
  • Taking immediate and affirmative steps to incorporate environmental justice considerations into EPA’s work, including assessing impacts to pollution-burdened, underserved and tribal communities in regulatory development processes and to consider regulatory options to maximize benefits to these communities.

    • …

June 10, 2021

Major Air Regulatory Developments Anticipated for Pennsylvania Natural Gas Operators

The Legal Intelligencer

(by Gary Steinbauer)

Changes are coming to federal and state air quality regulations affecting new and existing upstream and midstream natural gas operations.  Congress is in the midst of finalizing legislation to undo a Trump administration Clean Air Act (CAA) rule, which rolled back Obama-era CAA requirements.  Separately, the U.S. Environmental Protection Agency (EPA) has begun developing rules for existing air emissions sources within the natural gas sector.  At the state level, the Pennsylvania Department of Environmental Protection (PADEP) is poised later this year to finalize its own set of air regulations for existing sources within the natural gas sector.  Any of these regulatory developments alone would be noteworthy; combined, they likely signal increased oversight, scrutiny, and regulation of new and existing air emission sources within Pennsylvania’s natural gas sector.

Congress Set to Disapprove Trump EPA Oil and Natural Gas CAA Rule

In March 2021, Congress invoked its rarely used Congressional Review Act (CRA) authority to rescind a Trump EPA rule that excluded emission sources in the transmission and storage segments and rescinded methane emission limits for the production and processing segments in New Source Performance Standards for the Crude Oil and Natural Gas Industry at 40 C.F.R. Part 60, Subparts OOOO and OOOOa (NSPS).  Oil and Natural Gas Sector: Emissions Standards for New, Reconstructed, and Modified Sources Review, 85 Fed. Reg. 57018 (Sept. 14, 2020).  Reinstating the NSPS methane requirements means that EPA would be statutorily required to regulate methane emissions from existing affected sources within the natural gas sector.  See 42 U.S.C. § 7411(d)(1).

While U.S. Senate voted to pass a joint resolution revoking the Trump administration’s revisions to these NSPS in April 2021, a vote in the House of Representatives has yet to be scheduled.  …

June 3, 2021

Changing Compliance Obligations for Employers Continue into 2021

The Legal Intelligencer

(by Molly Meacham)

Even in ordinary times, keeping up with an ever-changing employment law landscape is a compliance challenge for businesses.  The extraordinary circumstances of the COVID-19 pandemic sparked unprecedented compliance challenges for employers, including workplace safety issues, additional temporary leave requirements, and interpreting existing obligations through the lens of COVID-19.

Compliance obligations for employers are continuing to evolve in 2021.  Presidential administration change and a change in the majority party in the U.S. Senate each typically cause new and revised legislation and regulations.  Combined with the ongoing pandemic, the result is continued significant alteration to the legal and regulatory framework that will impact employers in 2021 and beyond.  These developing issues include worker classification under the Fair Labor Standards Act (FLSA), a temporary expansion of the Consolidated Omnibus Budget Reconciliation Act (COBRA) under the American Rescue Plan Act of 2021 (ARPA), and COVID-19 workplace safety issues relating to fully vaccinated employees.

FLSA Independent Contractor Rule Withdrawn

One of the most important baseline employment-related determinations a business can make is whether a worker is properly classified as an employee or an independent contractor under the FLSA.  Worker misclassification is a frequently-litigated issue that represents significant legal exposure for businesses, as damages for misclassification can include retroactive application of minimum wage and overtime requirements, the value of employee benefits that were not provided, any legally-mandated sick time, or self-employment tax paid by the worker.

In the last weeks of the Trump administration in early 2021 the Department of Labor (DOL) issued a Final Rule seeking to clarify the independent contractor test and make it easier to identify workers covered by the FLSA.  The traditional independent contractor test contains six non-exclusive factors which the DOL’s Wage and Hour Division and the federal courts evaluate on a case-by-case basis to determine whether a worker is, as a matter of economic reality, dependent on the employer for work or in business for themselves, with no single factor considered dispositive.  …

June 2, 2021

Commonwealth Court Confirms EHB Discretion in Awarding Fees Under the Clean Streams Law

RMMLF Mineral Law Newsletter

(Joseph K. Reinhart, Sean M. McGovern and Casey J. Snyder)

On February 16, 2021, the Pennsylvania Commonwealth Court affirmed the Pennsylvania Environmental Hearing Board’s (EHB) decision to deny environmental groups’ petition for attorney’s fees after a settlement with the Pennsylvania Department of Environmental Protection (PADEP) in a third-party permit appeal over Sunoco Pipeline L.P.’s (Sunoco) Mariner East 2 pipeline because neither side acted in “bad faith.” Clean Air Council v. PADEP, 245 A.3d 1207 (Pa. Commw. Ct. 2021). After the plaintiffs settled the dispute at the EHB over permits issued to Sunoco for its Mariner East 2 pipeline, the plaintiffs filed an application with the EHB to recover costs and fees of the litigation totaling nearly $230,000 from Sunoco, which was not a party to the settlement. Id. at 1210. The EHB applied a stricter standard for recovering fees from a private party than in applications to recover fees from PADEP, requiring the plaintiffs to show the private party acted in “bad faith.” Id. at 1211. Under this standard, the EHB reasoned, permittees would not be “dissuaded from vigorously protecting their interests . . . in good faith.” Id. (quoting Clean Air Council v. PADEP, 2019 EHB 228, 236). Finding no bad faith, the EHB denied the plaintiffs’ application for costs and fees. Id.

The plaintiffs appealed the decision to the commonwealth court, arguing that the EHB should have applied the less stringent “catalyst test,” which would have required the plaintiffs to meet an easier standard: that the opposing party provided some benefit the fee-requesting party sought, the suit stated a genuine claim, and their appeal was a substantial or significant reason why the opposing party provided the benefit the fee-requesting party sought in the underlying suit. …

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