Ballard Spahr Lawyers Turn Back Robinson Township Challenge to Waste-to-Energy Facility

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Although some have suggested that Robinson Township, et al. v. Commonwealth, a 2013 Pennsylvania Supreme Court ruling that struck down key provisions of a state law regulating the oil and gas industry, could impair development in the Commonwealth, Ballard Spahr lawyers have recently demonstrated otherwise. In an opinion issued last week by the Lehigh County Court of Common Pleas in Fegley v. Lehigh County Board of Elections, the court agreed that Robinson Township may be used as a shield for environmentally sound projects facing challenges from local interest groups. The court applied Robinson Township’s plurality holding that Article I, Section 27 of the Pennsylvania Constitution requires that decisions of the state and local governments be guided by the government’s role as trustee of the state’s environmental resources, with the result in this case being that local opponents could not employ a referendum to bar a project. Ballard Spahr argued before the court on behalf of waste-to-energy facility developer and client Delta Thermo Energy (DTE).

Last year, opponents of the DTE project petitioned to have a new municipal air ordinance presented to voters for approval by referendum in the November elections. The proposed ordinance included compliance requirements that conflicted with the requirements and procedures established by the Pennsylvania Department of Environmental Protection (DEP) under the Pennsylvania Air Pollution Control Act (APCA), which could have derailed the project.

As the entity responsible for preparing the ballots for upcoming Allentown elections, the Board of Elections refused to put the ordinance on the ballot by finding that such action was preempted by the APCA. The project opponents filed a mandamus action in the court of common pleas to compel the Board to print the ordinance on the ballot, and DTE (whose project was an intended target of the proposed ordinance) intervened.

In their complaint, the plaintiffs initially argued that the Board’s action violated the APCA and state election law (arguments which the court later rejected). However, in the wake of the Robinson decision, the plaintiffs added a constitutional challenge by moving for summary judgment on the basis that the Board had failed to uphold its Article I, Section 27 role as trustee of the environmental trust when it declined to allow the voter referendum on the ordinance.

Ballard Spahr lawyers argued on behalf of DTE that the Board’s action was not only consistent with Article I, Section 27, but that for the Board to have done otherwise would have been unconstitutional. DTE cross-moved for summary judgment on the basis of Robinson, arguing that the City of Allentown could not constitutionally subject such an environmental ordinance to a popular vote, thereby abdicating the government’s role as trustee of the environmental trust and turning that role over to a subset of the beneficiaries of that trust.

The court rejected the plaintiffs’ constitutional argument, adopted DTE’s position, and entered judgment in DTE’s favor. The court held that “Robinson makes it clear that the relief Plaintiffs seek would unconstitutionally deprive the Pennsylvania Department of Environmental Protection and the City of the ability to fulfill their duties as a trustee of the environmental resources of the Commonwealth, as required under Article I § 27 of the PA Constitution.” Moreover, the court rejected the plaintiffs’ assertions regarding the environmental impact of DTE’s project, noting that such assertions were not corroborated by any evidence and were contrary to evidence submitted by DTE showing the extensive efforts by the DEP, the City, and the courts to account for the environmental costs and benefits of the project in light of the government’s Article I, Section 27 duties.

This decision suggests not only that a developer can defeat an environmentally-oriented Robinson challenge, but that Article I, Section 27 can serve as a shield for developers seeking certainty that permitting from the DEP or other Commonwealth agencies will not be undercut by local interest groups seeking to derail such development. Given the court’s apparent reliance on evidence showing the DEP’s extensive consideration of the environmental costs and benefits of the project during the permitting process, developers seeking to minimize the impact of Robinson would do well to work with state agencies or localities up front to assure that the decision-makers take environmental impacts into consideration and document their consideration of those issues under Article I, Section 27. In the right circumstances, an appropriate record can help the developer defeat community opposition to a project that is based on unsupported concerns.

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