July 7, 2019
The Pennsylvania Senate should be applauded for its decision to confirm Secretary Patrick McDonnell for another term at the helm of the Department of Environmental Protection, and Gov. Wolf deserves credit for keeping a steady hand at the wheel of this important agency. Secretary McDonnell has shown considerable poise in navigating the complex business of balancing environmental protection against permitting various projects that allow the state’s economy to grow.
But let us be clear – there is certainly more work to be done. Both chambers of the General Assembly have shown a keen interest in passing regulatory reform legislation, citing the common experience of constituents and businesses who have faced delays and uncertainty through the permitting process. The governor has also made it a priority to both improve the permit process and, through the appropriations process and various proposed fee increases, provide the department with the necessary resources to protect the environment. The business community supports both the bipartisan spirit of reform and DEP having the funding necessary to implement a predictable, consistent permit process. These goals should be wedded together.
Throughout the discussions on regulatory and permitting reform and budget discussions, there remains an under-reported dynamic at play: that of litigious environmental groups who at the drop of the hat are ready to sue the agency over any given permit. There are several reasons for this, one being that such groups must show their value to their donor base; another being, the state’s Clean Streams Law provides that the courts may award attorneys’ fees to those who challenge permits. This provision is widely viewed by some in the environmental world as a revenue stream.
Hence, in any given year, tens or hundreds of thousands of dollars leave the agency to fund further litigation against the department. There is also a considerable amount of state government staff and resources expended by the department to ensure every permit and authorization issued is likely to withstand scrutiny. To be clear, the department has done a very good job of defending its permitting decisions to date, and we are not advocating the agency get lax in its review processes. But the reason why many cases permit decisions are taking so long is the permit reviewers are in the cross hairs of environmental litigators.
To fix this, we support three reforms, including those being championed by Sens. Gene Yaw, R-Lycoming, and Camera Bartolotta, R-Washington, that will result in an improved permitting process and, by extension, a better environment and a stronger economy. First, we encourage the administration to embrace contracting with licensed professionals for the technical review of permits. It is of course imperative that the department retain final say in the issuance of the permit and that conflicts of interest are avoided. Currently, the private sector assists state government in a number of important matters, from providing health care to designing roads and bridges to managing hazardous site reclamation to providing IT services. We believe the private sector can also benefit the department by providing technical consulting services on permits, giving the agency additional confidence in its decisions.
Second, the issue of awarding attorneys’ fees must be addressed. We encourage the agency to support efforts that will limit the awarding of attorneys’ fees except in cases where a party acted in bad faith – such as a company knowingly providing false information on a permit application or a third-party bringing suit simply to delay a project.
Finally, given the spate of challenges to permitting decisions before the Environmental Hearing Board, the governor and the legislature should work together on reforms that limit appeals to issues directly related to the permit decision. Too often, challengers attempt to throw everything against the wall to see what sticks, costing both state government and those who want to build something (such as a factory or a school or a hospital) large amounts of time and money to sort out the issue at hand. Instead, appeals should be limited to issues raised during the public comment period for the project or the permit. If it’s important enough for an individual to want to sue DEP over, it should be important enough for them to raise during the permit process.
With the enactment of these three ideas, DEP will function better, to the benefit of all of Pennsylvania.
Kevin Sunday is director of government affairs with the Pennsylvania Chamber of Business and Industry.