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Pennsylvania Environmental Hearing Board Sets Guidelines for Challenges to PADEP Permitting Decisions
Yesterday, the Pennsylvania Environmental Hearing Board issued an important decision that provides guidance on how to apply Article I, Section 27 of the Pennsylvania Constitution (“Environmental Rights Amendment” or “ERA”) in the context of a permitting decision in light of the Pa. Supreme Court’s recent decision in Pa. Environmental Defense Found. v. Commonwealth, No. 10 MAP 2015 (Pa. June 20, 2017) (“PEDF”). See Center for Coalfield Justice v. DEP, EHB Docket No. 2014-072-B (Adjudication issued Aug. 15, 2017).
This case began when the Center for Coalfield Justice and the Sierra Club appealed the Pennsylvania Department of Environmental Protection’s (“PADEP”) issuance of two permit revisions to Consol (Permit Revision Nos. 180 and 189) for longwall mining in the Bailey Mine Eastern Expansion Area (“BMEEA”). In the Board’s decision, after finding that Permit Revision No. 189 violated the Clean Streams Law and the Bituminous Mine Subsidence and Land Conservation Act (“Mine Subsidence Act”), the Board turned to the Appellants’ objections under the ERA. The Board noted that “neither the decision in PEDF nor the plurality decision in Robinson Twshp., discuss the application of Article I, Section 27 principles in the context of a Department permitting decision,” and therefore the Board endeavored to set out some guidelines of its own.
