In February, the Pennsylvania Supreme Court decided that the Environmental Hearing Board could award attorney fees and litigation costs to a prevailing third-party appellant under the Clean Streams Law. See Clean Air Council v. Department of Environmental Protection, No. 73 MAP 2021 (Pa. Feb. 22, 2023). Importantly, the award in that case was against the private applicant whose permits the third-party had challenged, not against the Department of Environmental Protection alone. That result has possible implications for how one might prudently pursue approvals. It may turn out to chill important behavior.

The Clean Streams Law, 35 Pa. Stat. Ann. Sections 691.1 to .1001, is Pennsylvania’s water pollution regulatory statute. It is not a “little” version of the federal Clean Water Act, but instead a state law dating back to 1937.

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