IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clean Air Council, The Delaware :

Riverkeeper Network, and :

Mountain Watershed Association, Inc., :

:

Petitioners :

:

 v. : No. 309 C.D. 2019

: 

Commonwealth of Pennsylvania, :

Department of Environmental :

Protection, :

:

Respondent :

Department of Environmental :

Protection, :

:

Petitioner :

:

 v. : No. 313 C.D. 2019

: Argued: June 10, 2020

Clean Air Council, The Delaware : 

Riverkeeper Network, Mountain :

Watershed Association, Inc. :

and Sunoco Pipeline, L.P., :

:

Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge1

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

1 This case was assigned to the opinion writer before Judge Brobson succeeded Judge 

Leavitt as President Judge.
2

OPINION BY JUDGE WOJCIK FILED: February 16, 2021

In these consolidated appeals, the Clean Air Council, The Delaware 

Riverkeeper Network, and Mountain Watershed Association, Inc. (collectively, 

Objectors), and the Department of Environmental Protection (DEP), petition for 

review of the orders of the Environmental Hearing Board (EHB) denying the fee 

applications of Objectors and Sunoco Pipeline, L.P. (Sunoco) filed pursuant to the 

provisions of The Clean Streams Law.

2

 Also before the Court is Sunoco’s 

Application to Quash DEP’s appeal. We grant the Application to Quash, quash 

DEP’s appeal, and affirm EHB’s order.

On February 13, 2017, DEP granted a total of 20 permits to Sunoco, 3 

for erosion and sediment control3 and 17 for water obstruction and encroachment,4

2 Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. §§691.1-691.1001.

3 These are referred to as “Chapter 102” permits, granted under the provisions of Chapter 

102 of DEP’s regulations, 25 Pa. Code §§102.1-102.51. See, e.g., Becker v. Department of 

Environmental Protection (Pa. Cmwlth., No. 560 C.D. 2017, filed December 1, 2017), slip op. at 

15 (“Under The Clean Streams Law and its regulations promulgated at Chapter 102 of Title 25 of 

the Pennsylvania Code, [DEP] has the authority to issue orders to prevent the pollution of waters 

of the Commonwealth, which are defined very broadly to include . . . ‘any and all rivers, streams 

. . . or parts thereof.’ Section 1 of The Clean Streams Law, 35 P.S. §691.1[.]”); Delaware 

County Community College v. Fox, 342 A.2d 468, 479-80 (Pa. Cmwlth. 1975) (holding that 

DEP’s regulations in Chapter 102 of the Pennsylvania Code, relating to erosion and 

sedimentation control, provide protection against secondary polluting effects should they become 

imminent).

4 These are referred to as “Chapter 105” permits, granted under the provisions of Chapter 

105 of DEP’s regulations, 25 Pa. Code §§105.1-105.64. As we have previously explained:

The [Dam Safety and Encroachments Act (DSEA), Act of 

November 26, 1978, P.L. 1375, as amended, 32 P.S. §§693.1-

693.27], similar to The Clean Streams Law, provides [DEP’s] 

statutory authority for Chapter 105 regulations governing water 

obstructions and encroachments, the scope of which is broadly 

(Footnote continued on next page...)
3

which Sunoco had sought relating to its plan to construct the Pennsylvania Pipeline 

Project also known as the Mariner East 2 natural gas pipeline. EHB Op. at 2. This 

decision was appealed to the EHB on February 14, 2017, by the Organizations, id., 

which led to a series of additional appeals, filings, and negotiations resulting in a

settlement agreement between Objectors and the DEP, which stated that it

generally provides for the development or revision of

[DEP] policies and procedures relating to future natural 

gas pipelines in consideration for [Objectors] 

withdrawing their appeal. The settlement provides for 

the establishment of a stakeholder group on pipeline 

construction, and for the online availability of pipeline 

permit applications and review documents. No part of 

the settlement altered any of the 20 permits under appeal, 

[a February 8, 2018 consent order and agreement 

between DEP and Sunoco], or the various other 

stipulated orders entered into by all the parties. 

[Objectors] received $27,500 in reimbursement of costs 

and attorney’s fees from [DEP] in the settlement and 

 

(continued...)

delineated to include “[a]ll water obstructions and encroachments 

. . . located in, along, across or projecting into any watercourse, 

floodway or body of water, whether temporary or permanent.”

Section 4 of the DSEA, 32 P.S. §693.4 (emphasis added).

Becker, slip op. at 16. See also Section 105.15(b) of DEP’s regulations, 25 Pa. Code §105.15(b) 

(“For structures or activities where water quality certification is required under section 401 of the 

Clean Water Act (33 U.S.C.A. §1341), an applicant . . . shall prepare and submit to [DEP] for 

review, an environmental assessment containing the information required by subsection (a) for 

every dam, water obstruction or encroachment located in, along, across or projecting into the 

regulated water of this Commonwealth.”); Solebury Township v. Department of Environmental 

Protection, 928 A.2d 990, 999 (Pa. 2007) (“[W]e conclude that, at least under the circumstances 

presented in this case, challenges to The Clean Streams Law aspects of the issuance of Section 

401 Certifications are ‘proceedings pursuant to this act’ for purposes of the fee-shifting 

provisions of Section 307 [of The Clean Streams Law].”).
4

agreed not to seek further reimbursement for fees and 

costs from [DEP].

Id. at 4. Sunoco was not a party to this settlement agreement. Id.

Objectors then filed an application for costs and fees with EHB, 

seeking to recover $228,246 from Sunoco for Objectors’ efforts relating to certain 

segments of their EHB appeal and the costs incurred in the fee application process 

itself. EHB Op. at 5-6. Sunoco responded with an application of its own, 

requesting $298,906.12 in costs and fees from Objectors, in order to partially cover 

the expenses Sunoco had incurred by defending against the EHB appeal, as well as 

any costs and fees resulting from the fee application process. Id. at 6.

On February 19, 2019, in a divided opinion, EHB denied both 

applications. Noting that Section 307(b) of The Clean Streams Law5 affords wide 

latitude to award costs and fees, the EHB majority stated that it applies a three-step 

process when a party seeks such compensation from DEP: “(1) [EHB determines] 

whether the fees have been incurred in a proceeding pursuant to The Clean Streams 

Law; (2) [EHB then determines] whether the applicant has satisfied the threshold 

criteria for an award; and (3) if those two prongs are satisfied, [EHB] then 

determine[s] the amount of the award.” EHB Op. at 7.

However, the majority highlighted that different goals and 

responsibilities were involved in this matter, as the applications under 

consideration sought costs and fees from private parties, rather than from 

Commonwealth entities. EHB Op. at 7-8. The majority stated that “the standard 

5 35 P.S. §691.307(b). Section 307(b) states, in relevant part: “The [EHB], upon the 

request of any party, may in its discretion order the payment of costs and attorney’s fees it 

determines to have been reasonably incurred by such party in proceedings pursuant to [The 

Clean Streams Law].”
5

for awarding fees against any private party need not be concomitant with the 

standard for fees against [DEP].” Id. at 8.

Accordingly, the majority held that it should impose a more stringent 

test, in which a private party could be liable for such costs and fees only if EHB 

found that the private party “engaged in dilatory, obdurate, vexatious, or bad faith 

conduct in the course of prosecuting or defending [an] appeal[ to the EHB.]” EHB 

Op. at 10. The majority reasoned that this would protect permittees’ rights to due 

process in the context of a third-party appeal and would not result in permittees 

being “dissuaded from vigorously protecting their interests in those proceedings in 

good faith.” Id. at 9.

In support of this conclusion, the majority cited and discussed the 

Pennsylvania Supreme Court’s opinion in Lucchino v. Department of 

Environmental Protection, 809 A.2d 264 (Pa. 2002), which affirmed EHB’s use of 

a bad faith standard in determining whether to impose an award of costs and fees 

against a private individual. EHB Op. at 9-10.6 Furthermore, the majority 

reasoned that, “[f]or purposes of the instant appeal, no other credible, workable 

alternative to the bad faith standard has been proposed.” Id. at 10. Applying this 

standard to the facts herein, the majority found that neither Objectors, nor Sunoco, 

had operated in bad faith during the course of Objectors’ appeal and, on that basis, 

denied their respective fee applications. Id. at 11-17.

In contrast, although the EHB minority agreed that neither Objectors 

nor Sunoco was entitled to attorney’s fees under the circumstances, the minority

6

In Lucchino, the Supreme Court noted that EHB determined that the objector in that 

case had used the administrative appeal process in bad faith, to do nothing more than harass DEP 

and the affected permittee. 809 A.2d at 269.
6

disputed the propriety of using the bad faith test to evaluate such fee applications. 

EHB Op. at 19. The minority stated that there is no legal basis for applying a bad 

faith standard, nor for using different tests depending upon whether the application 

is lodged against a government entity or a private party. Id. at 19-21. 

Rather, the minority maintained that Section 307(b) of The Clean 

Streams Law clearly and unambiguously establishes a uniform standard that 

permits EHB, upon request, to assess costs and fees at its discretion, without any 

need for a finding of bad faith. EHB Op. at 20. The minority distinguished 

Lucchino from this matter, arguing that while it read Lucchino as requiring the 

EHB to apply a bad faith standard when considering a fee application lodged 

against a third-party appellant, no such mandate exists for those directed towards 

permittees. Id. at 21.

In addition, the minority did not “believe that allowing attorney’s fee

awards against permittees [would] have a ‘chilling effect’ on permit applicants.” 

EHB Op. at 21. The minority explained that this was so because the interests at

play are different for permit applicants compared to likely third-party appellants, 

such as Objectors herein, who might otherwise be discouraged from making their 

voice heard if an appeal mounted in good faith could nonetheless result in a hefty 

financial penalty. Id. Furthermore, the minority noted that Section 307(b)’s feeshifting provision is to be liberally construed. The minority determined that, given 

a permittee’s role in the permitting process and any resultant appeals, “if the law 

mandates an award of attorney’s fees under The Clean Streams Law [to the 

appellant], . . . a permittee should shoulder at least some of its rightful 

responsibility.” Id. at 21-25.
7

Both Objectors and DEP separately appealed EHB’s decision to this 

Court, and the appeals were consolidated. Subsequently, Sunoco intervened in the 

appeals and filed the Application to Quash seeking to quash DEP’s appeal, arguing 

that DEP does not have standing to appeal the EHB’s fee application decision. 

Application to Quash ¶¶1-5.

I.

Preliminarily, with respect to the Application to Quash, we note that 

DEP submitted a brief to EHB regarding permittee liability under Section 307(b) 

of The Clean Streams Law, and participated in oral argument before EHB. See

DEP’s Answer to Application ¶¶12-18. It appears that this was done with the 

assent of both Objectors and Sunoco. Id. However, the record of this case does 

not show that DEP ever formally sought intervention in the attorney’s fee and cost 

application proceedings. See Section 4(e) of the Environmental Hearing Board 

Act7(“Intervention.--Any interested party may intervene in any matter pending 

before [EHB].”).

7 Act of July 13, 1988, P.L. 530, 35 P.S. §7514(e). Regarding the application of Section 

4(e), we have stated:

[I]n the context of intervention, the phrase “any interested party” 

actually means any person or entity interested, i.e., concerned, in 

the proceedings before [EHB]. The interest required, of course, 

must be more than a general interest in the proceedings; it must be 

such that the person or entity seeking intervention will either gain 

or lose by direct operation of [EHB]’s ultimate determination. See

Black’s Law Dictionary 730 (5th ed. 1979); see also [Section 101 

of the Administrative Agency Law,] 2 Pa. C.S. §101[,] wherein a 

party is defined as “[a]ny person who appears in a proceeding 

before an agency who has a direct interest in the subject matter of 

such proceeding.” To interpret this phrase any differently, under 

(Footnote continued on next page...)
8

The traditional concept of standing “is rooted in the notion that for a 

party to maintain a challenge to an official order or action, he must be aggrieved in 

that his rights have been invaded or infringed.” Franklin Township v. Department 

of Environmental Resources, 452 A.2d 718, 719 (Pa. 1982). “[A] party who is not 

negatively affected by the matter he seeks to challenge is not aggrieved, and thus, 

has no right to obtain judicial resolution of his challenge.” City of Philadelphia v. 

Commonwealth, 838 A.2d 566, 577 (Pa. 2003). To that end, an individual’s 

standing in a matter is normally contingent upon their ability to articulate an 

interest that is substantial, direct, and immediate. See, e.g., Fumo v. City of 

Philadelphia, 972 A.2d 487, 496 (Pa. 2009); Department of Environmental 

Resources v. Jubelirer, 614 A.2d 199, 203 (Pa. 1989); William Penn Parking 

Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 280-83 (Pa. 1975).

However, the notion of traditional standing does not apply when 

dealing with appeals from administrative agencies. Our Supreme Court has held:

[B]y virtue of Section 702 of the Administrative Agency 

Law, [2 Pa. C.S. §702,] neither party status nor 

traditional aggrievement is necessary to challenge actions 

of an administrative agency. Rather, standing to appeal 

administrative decisions extends to “persons,” including 

non-parties, who have a “direct interest” in the subject 

 

(continued...)

these circumstances, would lead to an absurd and unreasonable 

result as well as render the [Environmental Hearing Board] Act’s 

intervention provision ineffective; presumably, neither of which 

the legislature intended here. Section 1922(1), (2) of the Statutory 

Construction Act of 1972, 1 Pa. C.S. § 1922(1), (2).

Browning-Ferris, Inc. v. Department of Environmental Resources, 598 A.2d 1057, 1060-61 (Pa. 

Cmwlth. 1991).
9

matter, as distinguished from a “direct, immediate, and 

substantial” interest. [Application of El Rancho Grande, 

Inc., 437 A.2d 1150, 1152 (Pa. 1981)] (quoting 2 Pa. C.S. 

§702). A direct interest requires a showing that the 

matter complained of caused harm to the person’s 

interest. South Whitehall Township Police Service v. 

South Whitehall Township, [555 A.2d 793, 795 (Pa. 

1989)]. Although not the full equivalent of “direct, 

immediate, and substantial,” the direct interest 

requirement retains the function of differentiating 

material interests that are discrete to some person or 

limited class of persons from more diffuse ones that are 

common among the citizenry.

Citizens Against Gambling Subsidies, Inc. v. Pennsylvania Gaming Control Board, 

916 A.2d 624, 628 (Pa. 2007) (Citizens).

Nevertheless, this relaxed test for standing does not excuse a party 

from formally intervening at the administrative level. Mere participation, even 

rising to the level of filing a brief or engaging in oral argument before an 

administrative agency, is not enough to confer standing to a party in the absence of 

formal, approved intervention. As the Pennsylvania Supreme Court has observed:

This conclusion is in accord with our finding in 

Citizens that permitting an appeal absent intervention in 

the proceedings before the [Pennsylvania Gaming 

Control] Board is “inconsistent with orderly rules of 

procedure and would foster untenable impracticalities in 

terms of the development of an essential record for 

consideration on appeal.” 916 A.2d at 629. . . .

Further, [p]etitioners’ attempt to distinguish Citizens on 

the ground that the petitioners there chose not to 

intervene is unpersuasive. The salient fact in Citizens

was simply that the petitioners did not intervene when 

they had the opportunity to do so. Moreover, the fact that 

[p]etitioners participated at the hearing without 

intervening does not afford them standing. See Stanbro 

v. Zoning Hearing Board of Cranberry Township, [566 

A.2d 1285, 1287 (Pa. Cmwlth. 1989)] (holding that 
10

participation at the trial court level by filing a brief and 

participating in oral argument without intervention is 

insufficient to be accorded standing to appeal).

Society Hill Civic Association v. Pennsylvania Gaming Control Board, 928 A.2d 

175, 183 (Pa. 2007) (footnote and emphasis omitted). Therefore, because DEP did 

not formally intervene before EHB, DEP does not have standing under the 

Administrative Agency Law to appeal EHB’s decision denying Objectors’ 

Application.

As a result, the only basis upon which DEP could possess standing in 

this matter would be pursuant to its statutory powers. In Pennsylvania Game 

Commission v. Department of Environmental Resources, 555 A.2d 812, 815 (Pa. 

1989) (citation omitted), our Supreme Court discussed the nature of how an agency 

may possess legislatively established standing:

Although our law of standing is generally articulated in 

terms of whether a would-be litigant has a “substantial 

interest” in the controverted matter, and whether he has

been “aggrieved” or “adversely affected” by the action in 

question, we must remain mindful that the purpose of the 

“standing” requirement is to insure that a legal challenge 

is by a proper party. . . . The terms “substantial interest,” 

“aggrieved[,]” and “adversely affected” are the general, 

usual guides in that regard, but they are not the only ones.

For example, when the legislature statutorily invests an 

agency with certain functions, duties and responsibilities, 

the agency has a legislatively conferred interest in such 

matters. From this it must follow that, unless the 

legislature has provided otherwise, such an agency has an 

implicit power to be a litigant in matters touching upon 

its concerns. In such circumstances the legislature has 

implicitly ordained that such an agency is a proper party 

litigant, i.e., that it has “standing.”
11

In that case, the Supreme Court considered the Pennsylvania Game 

Commission’s statutory authority under the Game and Wildlife Code,8 and 

concluded that it “has a substantial interest in the lands and wildlife under its 

control. This alone would be sufficient to give it standing to legally challenge any 

action which allegedly would have an adverse impact on those interests.” 555 

A.2d at 816. In addition, the Supreme Court noted that a specific provision of the 

Dam Safety and Encroachments Act (DSEA) “expressly gives the Commission the 

power to enforce th[at statute] where a violation of it would adversely impact upon 

the property under the Commission’s control.” Id. On this alternate basis, the 

Supreme Court “conclude[d] that the Commission had standing to raise the DSEA 

in its challenge to [the Department of Environmental Resources’

9

] issuance of [a]

solid waste permit in this case.” Id.

The General Assembly has expressly conferred upon DEP the 

authority to enforce The Clean Streams Law. See Section 1901-A(20) of The 

Administrative Code of 192910 (“The Department of Environmental Resources 

shall . . . continue to exercise the powers and perform the duties by law heretofore 

vested in and imposed upon . . . [t]he Department of Health by the act . . . known 

as ‘The Clean Streams Law[.]’”). Specifically, under Section 5(5) of The Clean 

Streams Law, DEP has the power to “[r]eview and take appropriate action on all 

8 34 Pa. C.S. §§101-2965.

9 DEP was formerly named the Department of Environmental Resources. Adams 

Sanitation Co. v. Pennsylvania Department of Environmental Protection, 683 A.2d 981, 982 n.1 

(Pa. Cmwlth. 1996), aff’d on other grounds, 715 A.2d 390 (Pa. 1998).

10 Act of April 9, 1929, P.L. 177, as amended, added by Act of December 3, 1970, P.L. 

834, 71 P.S. §510-1(20).
12

permit applications submitted pursuant to the provisions of [The Clean Streams 

Law] and to issue, modify, suspend, limit, renew or revoke permits pursuant to 

[The Clean Streams Law] and to the rules and regulations of the [DEP].” 35 P.S. 

§691.5(5).

However, as noted above, DEP’s interest herein is merely prospective, 

based on its concern that EHB’s decision in this matter will enshrine the bad faith 

standard as the appropriate standard to be applied in all similar costs and fees 

application cases in the future. See, e.g., DEP’s Answer to Application ¶24 

(“EHB’s decision establishes precedent to be applied in future fees litigation under 

Section 307(b). Given the substantial impact the EHB’s decision will have on 

attorney’s fees litigation, [DEP] has an immediate need to determine the proper 

standard to apply.”).

The competing fee applications herein were filed by, and directly 

affected, only Objectors and Sunoco; regardless of EHB’s decision, there was no 

possibility that EHB would have imposed additional costs and fees on DEP in 

addition to those that it already agreed to as part of its settlement agreement with 

Objectors. Thus, neither the traditional concept of standing, nor the legislatively 

established standing outlined above, is broad enough to encompass a challenge 

rooted solely in the potential, prospective effects of the disposition of a fee 

application under The Clean Streams Law between private parties where, as here, 

DEP’s authority or actions under The Clean Streams Law or the award of costs and 

fees against DEP thereunder are not implicated. Accordingly, the Application to 

Quash is granted and DEP’s appeal is quashed.
13

II.

Turning to the merits of Objectors’ appeal, Objectors first note that 

the standard for determining whether to award costs and fees to a party where a 

matter has been resolved without a decision on the merits is the “catalyst test,” in 

which:

(1) the applicant must show that the opposing party 

provided some of the benefit the fee-requesting party 

sought in the underlying suit, (2) the applicant must show 

that the suit stated a genuine claim, and (3) the applicant 

must show that the suit was a substantial or significant 

reason why the opposing party, voluntarily or otherwise, 

provided the benefit or partial benefit that the fee 

requesting party sought in the underlying suit.

Objectors’ Brief at 9-10 (quoting Upper Gwynedd Towamencin Municipal

Authority v. Department of Environmental Protection, 9 A.3d 255, 264-65 (Pa.

Cmwlth. 2010)). Objectors argue that bad faith is not the only “workable” 

standard for this type of scenario, and that EHB erred by not using the catalyst test 

to evaluate the Organizations’ fee application. Id. at 10-13. Moreover, Objectors 

state that EHB’s use of the bad faith standard is, under the circumstances, not 

supported by the plain language of Section 307(b) of The Clean Streams Law, case 

law, or public policy considerations. Id. at 14-15, 20-24. Contrary to EHB’s 

interpretation, Section 307(b) should be construed as neither requiring third-party 

appellants to prove bad faith conduct to recover costs and fees, nor mandating that 

EHB should review DEP’s and permittees’ actions using different standards when 

considering a fee application. Id. at 16-20.

Objectors then argue that the EHB majority misinterpreted Lucchino, 

asserting that “[t]he question Lucchino resolved was not whether bad faith was the 

right standard, but whether fees could be awarded against an appellant at all,” and 
14

that “[EHB] misunderstands the holding in Lucchino, which did not require or set a 

new standard but merely affirmed a fee award against an appellant.” Objectors’ 

Brief at 25. According to Objectors, the EHB majority’s concerns about 

permittees’ due process rights was entirely misplaced, especially because Lucchino

did not mention due process concerns. Objectors’ Brief at 26. Furthermore, 

Objectors point out that

[t]he [“]chilling effect[”] the [Lucchino] Court . . . was 

primarily concerned about is one that would 

disincentivize bringing meritorious appeals, not 

defending against them. 809 A.2d at 270. Permittees, 

being the beneficiary of the permit, will always have an 

interest in defending the permit. Lucchino also concerns

guarding against frivolous suits, id., but that is not an 

issue here.

Id.

In contrast, Sunoco asserts that EHB appropriately exercised its 

discretion in electing to apply a bad faith standard in evaluating the fee 

applications, rather than the catalyst test, arguing that this decision was supported 

by both case and statutory law. Sunoco’s Brief at 17-36. In addition, Sunoco 

highlights its lack of involvement in the settlement between DEP and Objectors, 

through which DEP agreed to revise its permit review process and which effected 

no changes upon Sunoco’s aforementioned permits. Id. at 34-35.

Also, according to Sunoco, a bad faith standard is warranted for 

several reasons related to public policy considerations. First, it is DEP’s statutory 

responsibility to enforce The Clean Streams Law. Sunoco’s Brief at 38-39. 

Second, on appeal, EHB reviews DEP’s actions, rather than those of the permittee. 

Id. at 39-40. Third, the catalyst test is fact-intensive and difficult to consistently 

apply. Id at 40-41. Sunoco contends that using the catalyst test in this kind of 
15

scenario would result in a greatly increased workload for EHB and would 

discourage settlements. Id. at 41-44. Sunoco claims that the catalyst test would be 

especially inappropriate for use here, because the complexity of this matter would 

require the EHB to conduct a lengthy and involved inquiry to determine the 

reasons for each of the actions taken and decisions made by the parties. Id. at 44-

46.

Initially, as this Court has explained:

Our review of EHB determinations under Section 

307(b) of The Clean Streams Law is limited to 

determining whether the EHB abused its discretion.

Solebury Township v. Department of Environmental 

Protection, [928 A.2d 990, 997 n.8 (Pa. 2007)]. In 

Kwalwasser [v. Department of Environmental Resources, 

569 A.2d 422, 424 (Pa. Cmwlth. 1990),

11] we noted that 

our disagreement with the EHB’s reasoning or result is 

11 As the Pennsylvania Supreme Court has explained:

In cases involving both Section 307 and Section 4(b) [of the 

Surface Mining Conservation and Reclamation Act, Act of May 

31, 1945, P.L. 1198, as amended, 52 P.S. §1396.4(b), superseded, 

27 Pa. C.S. §7708,] the EHB explained that, to determine whether 

an award of attorneys’ fees is appropriate, courts have applied an 

analysis that has become known as the Kwalwasser test, according 

to which “(1) a final order must have been issued; (2) the applicant 

for the fees and expenses must be the prevailing party; (3) the 

applicant must have achieved some degree of success on the 

merits; and (4) the applicant must have made a substantial 

contribution to a full and final determination of the issues.” Big B. 

Mining Co. v. Department of Environmental Resources, [624 A.2d 

713, 715 (Pa. Cmwlth. 1993)] (citing [Kwalwasser]). The EHB 

determined that it was appropriate to apply this test to the present 

matter, as, in its view, there was no reason to apply different 

criteria for petitions solely under Section 307.

Solebury Township, 928 A.2d at 995.
16

not sufficient ground to overturn the EHB’s decision. 

We may not substitute our judgment for that of the EHB. 

[Id.] Rather, “[a]n abuse of discretion occurs if, in 

reaching a conclusion, the law is overridden or 

misapplied or the judgment exercised is manifestly 

unreasonable or is the result of partiality, prejudice, bias, 

or ill will.” Luzerne County Children & Youth Services 

v. Department of Human Services, 203 A.3d 396, 398 

(Pa. Cmwlth. 2019).

Sierra Club v. Department of Environmental Protection, 211 A.3d 919, 924-25

(Pa. Cmwlth. 2019).

As indicated above, in disposing of the request for costs and fees, the 

EHB majority relied upon Lucchino, in which the Supreme Court affirmed EHB’s 

use of a bad faith standard in determining whether to impose an award of costs and 

fees against a private individual objector. The Court stated, in relevant part:

Although the EHB recognized that a citizen has a 

right to challenge agency actions that conflict with the 

law and directly affect the citizen, it properly found that 

the appeal here was an abuse of the administrative 

adjudicatory system because it did not challenge the 

[DEP]’s action, but was merely an attack on agency 

employees and officials. Where, as here, the record 

supports a tribunal’s finding of fact that the conduct of 

the party was dilatory, obdurate, vexatious, or in bad 

faith, this Court will not disturb an award of counsel fees 

in the absence of an abuse of discretion. Township of 

South Strabane v. Piecknick, [686 A.2d 1297 (Pa. 1996)] 

(awarding counsel fees appropriate if record supports 

finding of fact that the conduct of the party was dilatory, 

obdurate, or vexatious). We find no abuse of discretion 

in this instance and an award of counsel fees is 

appropriate. We do not reach this decision lightly for, as 

[the objector] reminds us, any grant of attorney’s fees 

against an individual litigant in a suit against his 

government has a potential “chilling effect” on the 

willingness of the ordinary citizen to pursue resolution of 

his disputes in the courts. However, recognizing that we 

must strike a delicate balance, it is equally important that 
17

this phrase not be employed to defeat the protections 

against frivolous suits afforded to a defendant.

809 A.2d at 269 (footnotes omitted).

Additionally, in Solebury Township, two townships sought review of 

EHB’s order denying their request for costs and fees from DEP and the 

Department of Transportation (PennDOT), as a governmental permittee, in which 

EHB employed the catalyst test. EHB determined that the townships did not 

prevail in the matter as required by that test because DEP had rescinded the 

contested Section 401 Certifications under The Clean Water Act on PennDOT’s 

request, and the case was ultimately dismissed as moot. In remanding the matter,

the Court stated:

[G]iven Pennsylvania’s strong policy to justly 

compensate parties who challenge agency actions by 

liberally interpreting fee-shifting provisions, see 

Lucchino, [809 A.2d at 269], we agree with the 

[t]ownships that the EHB’s narrow application of the 

Kwalwasser criteria in the present matter was erroneous.

More specifically, the broad grant of discretion to 

the EHB in awarding attorney’s fees under Section 307 

renders [EHB’s and PennDOT’s] argument that a formal 

judgment is necessary to a finding that a party has 

prevailed with some degree of success on the merits 

untenable. Instead, we agree with the Commonwealth 

Court that the practical relief sought by the [t]ownships 

should be considered when characterizing them as 

prevailing parties for purposes of the Kwalwasser test. 

Accord Buckhannon [Board & Care Home, Inc. v. West 

Virginia Department of Health & Human Resources, 532 

U.S. 598, 633 (2001)] (Ginsburg, J., dissenting) 

(“[W]here the ultimate goal is not an arbiter’s approval, 

but a favorable alteration of actual circumstances, a 

formal declaration is not essential.”). In addition, the 

EHB’s exclusive focus on the dismissal of the case as 

moot, without conducting a hearing or making further 

factual findings and legal conclusions, does not justify its 
18

holding that the [t]ownships did not achieve some degree 

of success on the merits and did not make a substantial 

contribution to the full and final determination of the 

issues.

Finally, as Lucchino makes clear, the EHB may, in 

its discretion, award attorney’s fees under Section 307 

solely on the basis of a finding of bad faith or vexatious 

conduct, which is supported by the record, without 

reference to the Kwalwasser criteria. See Lucchino, [809 

A.2d at 269-70]. In this regard, however, we agree with 

[EHB and PennDOT] that the Commonwealth Court 

erred by characterizing [their] conduct as vexatious on 

the undeveloped record before it. . . .

Since we conclude that the EHB’s application of 

the Kwalwasser criteria in the present matter was too 

narrow in view of the broad language of Section 307 and 

the public policy favoring liberal construction of feeshifting provisions, we cannot determine the propriety of 

the EHB’s denial of the [t]ownships’ motion for 

attorney’s fees under Section 307 on the present record. 

Accordingly, the order of the Commonwealth Court is 

vacated, and the matter is remanded to the EHB for 

further proceedings consistent with the above.

928 A.2d at 1004-05.

Based on the foregoing Supreme Court analyses, and contrary to 

Objectors’ assertions, the catalyst test is not the sole and exclusive standard that 

EHB may employ in disposing of a request for costs and fees against a permittee

under Section 307(b) of The Clean Streams Law. Indeed, we have specifically 

recognized that EHB’s “broad discretion includes the authority to adopt standards 

by which [it] will evaluate applications for costs and fees.” Sierra Club, 211 A.3d 

at 926. In the instant case, it was entirely within EHB’s discretion, and eminently 

appropriate, to apply the instant bad faith standard in deciding whether or not to 

impose costs and fees upon a private party permittee. In sum, “our disagreement 
19

with the EHB’s reasoning or result is not sufficient ground to overturn the EHB’s 

decision,” and “[w]e may not substitute our judgment for that of the EHB” in this 

regard. Id. (citing Kwalwasser).

Accordingly, we grant Sunoco’s Application to Quash DEP’s appeal; 

we quash DEP’s appeal; and we affirm EHB’s order.

MICHAEL H. WOJCIK, Judge

Judge Fizzano Cannon did not participate in the decision of this case.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clean Air Council, The Delaware :

Riverkeeper Network, and :

Mountain Watershed Association, Inc., :

:

Petitioners :

:

 v. : No. 309 C.D. 2019

: 

Commonwealth of Pennsylvania, : 

Department of Environmental :

Protection, :

:

Respondent :

Department of Environmental :

Protection, :

:

Petitioner :

:

 v. : No. 313 C.D. 2019

: 

Clean Air Council, The Delaware : 

Riverkeeper Network, Mountain :

Watershed Association, Inc. :

and Sunoco Pipeline, L.P., :

:

Respondents :

O R D E R

AND NOW, this 16

th day of February, 2021, Sunoco Pipeline, L.P.’s 

Motion to Quash is GRANTED; the Department of Environmental Protection’s 

above-captioned appeal is QUASHED; and the order of the Commonwealth of 

Pennsylvania, Department of Environmental Protection is AFFIRMED.

__________________________________

MICHAEL H. WOJCIK, Judge
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clean Air Council, The Delaware :

Riverkeeper Network, and Mountain :

Watershed Association, Inc., :

Petitioners :

:

v. : No. 309 C.D. 2019

:

Commonwealth of Pennsylvania, : 

Department of Environmental :

Protection, :

Respondent :

:

Department of Environmental :

Protection, :

Petitioner :

:

v. : No. 313 C.D. 2019

: Argued: June 10, 2020

Clean Air Council, The Delaware :

Riverkeeper Network, Mountain :

Watershed Association, Inc. and :

Sunoco Pipeline, L.P., :

Respondents :

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

CONCURRING OPINION

BY JUDGE BROBSON FILED: February 16, 2021

I join in Part I of the majority opinion, dismissing the appeal of the 

Department of Environmental Protection (DEP) for lack of standing. I concur in the 
PKB-2

result of Part II, that being affirmance of the decision of the Environmental Hearing 

Board (EHB) to deny the request by the Clean Air Council, The Delaware 

Riverkeeper Network, and Mountain Watershed Association, Inc. (collectively, 

Objectors) for an order directing Sunoco Pipeline, L.P. (Sunoco) to pay the costs and 

fees that Objectors incurred in the administrative proceeding below.

I write separately for two reasons. First, I believe that Amicus Curiae the 

Pennsylvania Chamber of Business and Industry (Pa. Chamber) highlights a 

potential constitutional infirmity with respect to the fee-shifting provision at issue in 

this case—Section 307(b) of The Clean Streams Law.1 In relevant part, 

Section 307(b) provides: “The [EHB], upon the request of any party, may in its 

discretion order the payment of costs and attorney’s fees it determines to have been 

reasonably incurred by such party . . . .” 35 P.S. § 691.307(b) (emphasis added). 

There are no standards in this section or elsewhere to cabin the EHB’s discretion. 

Without standards, Section 307(b) of The Clean Streams Law may run afoul of 

Article II, Section 1 of the Pennsylvania Constitution, which vests within the General 

Assembly the exclusive authority to make laws.2

Where, in the exercise of its legislative power, the General Assembly 

delegates discretion to an agency to administer a particular law, two fundamental 

limitations must be satisfied for the law to withstand constitutional scrutiny:

“First, . . . the General Assembly must make ‘the basic policy choices,’ and[,]

second, the legislation must include ‘adequate standards which will guide and 

restrain the exercise of the delegated administrative functions.’” Protz v. Workers’ 

1 Act of June 22, 1937, P.L. 1987, as amended, 35 P.S. § 691.307(b).

2

“The legislative power of this Commonwealth shall be vested in a General Assembly, 

which shall consist of a Senate and a House of Representatives.” Pa. Const. art. II, § 1.
PKB-3

Comp. Appeal Bd. (Derry Area Sch. Dist.), 161 A.3d 827, 834 (Pa. 2017) (quoting 

Pennsylvanians Against Gambling Expansion Fund, Inc. v. Cmwlth., 877 A.2d 383, 

418 (Pa. 2005)). There is a substantial legal question as to whether either of these 

fundamental limitations are met with respect to the EHB’s discretion to award fees

under Section 307(b) of The Clean Streams Law. Nonetheless, the majority 

appropriately avoids addressing the issue in this case for two reasons. First, it is not 

among the issues presented to us by the parties on appeal. Second, the issue would 

more appropriately be addressed in a challenge to an EHB award of fees under 

Section 307(b) of The Clean Streams Law.

Putting aside the utter lack of any statutory standards, we must still review the

EHB’s exercise of discretion for abuse. See Solebury Twp. v. Dep’t of Env’t Prot., 

928 A.2d 990, 997 n.8 (Pa. 2007). “An abuse of discretion is not merely an error of 

judgment, but if in reaching a conclusion the law is overridden or misapplied or the 

judgment exercised is manifestly unreasonable, or the result of partiality, prejudice, 

bias, or ill will, as shown by the evidence or the record, discretion is abused.” 

Commonwealth v. Spiewak, 617 A.2d 696, 699 n.4 (Pa. 1992) (emphasis added). 

Here, the EHB adopted a “bad faith standard,” concluding that fees against a 

permittee would only be warranted where the permittee engaged in offensive 

conduct in the course of defending its appeal before the EHB. The majority holds 

that this bad faith standard was “eminently appropriate” in this case. 

(Clean Air Council v. Dep’t of Env’t Prot., ___ A.3d ___, ___ (Pa. Cmwlth., 

Nos. 309 and 313 C.D. 2019, filed February 16, 2021), slip op. at 18.) While I agree, 

as the EHB is operating without legislative guardrails, I see no reason why 

“bad faith” must be the only test. I, therefore, cannot endorse it as such with 
PKB-4

respect to the exercise of the EHB’s discretion under Section 307(b) of The Clean 

Streams Law.

Rather, I would simply affirm the EHB’s decision because there is absolutely 

no basis in the record upon which the EHB could have exercised its discretion below 

in such a way as to compel Sunoco to pay Objectors’ legal fees under 

Section 307(b) of The Clean Streams Law. Sunoco was not a party to the settlement 

agreement between Objectors and DEP that essentially ended Objectors’ appeals. 

Moreover, Sunoco gave up nothing in the settlement or otherwise. Sunoco kept its 

permits, unaltered, as if Objectors had not even filed their appeals with the EHB. 

Under such circumstances, it would be manifestly unreasonable to order Sunoco, or 

any permittee, to pay Objectors’ attorney’s fees. For this reason, I concur in the 

majority’s decision to affirm the EHB’s order.

 

 P. KEVIN BROBSON, Judge

Judge Cohn Jubelirer joins in this concurring opinion.
IN THE COMMONWEALTH COURT OF PENNSYLVANIA

Clean Air Council, The Delaware :

Riverkeeper Network, and Mountain :

Watershed Association, Inc., :

Petitioners :

:

v. : No. 309 C.D. 2019

:

Commonwealth of Pennsylvania, :

Department of Environmental :

Protection, :

Respondent :

Department of Environmental :

Protection, :

Petitioner :

:

v. : No. 313 C.D. 2019

:

Clean Air Council, The Delaware :

Riverkeeper Network, Mountain :

Watershed Association, Inc. and :

Sunoco Pipeline, L.P., :

Respondents : ARGUED: June 10, 2020

BEFORE: HONORABLE MARY HANNAH LEAVITT, President Judge

HONORABLE RENÉE COHN JUBELIRER, Judge

HONORABLE P. KEVIN BROBSON, Judge

HONORABLE PATRICIA A. McCULLOUGH, Judge

HONORABLE ANNE E. COVEY, Judge

HONORABLE MICHAEL H. WOJCIK, Judge

HONORABLE ELLEN CEISLER, Judge

CONCURRING AND DISSENTING OPINION 

BY JUDGE CEISLER FILED: February 16, 2021

I join the majority with regard to its disposition of Sunoco Pipeline, L.P.’s 

(Sunoco) Application to Quash the Department of Environmental Protection’s 

(DEP) appeal. However, I must part ways from the majority regarding its 
EC - 2

affirmation, in full, of the Environmental Hearing Board’s (EHB) February 19, 2019 

decision. As our Court has previously held:

Under Section 307(b) of The Clean Streams Law, [Act of 

June 22, 1937, P.L. 1987, as amended, 35 P.S. § 

691.307(b),] the EHB has broad discretion to award or 

deny attorneys’ fees and costs in a particular proceeding. 

[Solebury Twp. v. Dep’t of Env’t Prot., 928 A.2d 990,

1003 (Pa. 2007)]. This broad discretion includes the 

authority to adopt standards by which the EHB will 

evaluate applications for costs and fees. Id. at 1004. Such 

standards, however, must be consistent with 

“Pennsylvania’s strong public policy to justly compensate 

parties [that] challenge agency actions by liberally 

interpreting fee-shifting provisions.” Id.

Sierra Club v. Dep’t of Env’t Prot., 211 A.3d 919, 926 (Pa. Cmwlth. 2019); see also

Lucchino v. Dep’t of Env’t Prot., 809 A.2d 264, 269 (Pa. 2002) (quoting Tunison v. 

Com., 31 A.2d 521, 523 (Pa. 1943)) (“For reasons of public policy, Pennsylvania 

courts have construed . . . statutory sections [like Section 307(b)] liberally ‘to justly 

compensate parties who have been obliged to incur necessary expenses in 

prosecuting lawful claims or in defending against unjust or unlawful ones.’”).

Requiring a showing of bad faith in this kind of situation does not square with 

the public policy purpose underpinning Section 307(b)’s fee-shifting language. To 

state the obvious, a permittee necessarily plays a critical role in the permitting 

process, for without an initial permit application, there would be no reason for 

subsequent litigation initiated by a third party. It does not therefore seem reasonable 

that, in theory, the DEP could be saddled with fees and costs in response to 

inadvertent mistakes or good faith, negotiated compromises or settlements, while a 

permittee could get off scot-free under similar circumstances unless it has conducted 

itself in a dilatory, obdurate, or vexatious way. 
EC - 3

Furthermore, Lucchino is distinguishable from the instant matter. While the 

Supreme Court took no issue with the EHB’s use of a bad faith standard in that 

matter, the context was different. There, the EHB was faced with a private 

individual, whose challenge to the DEP’s issuance of various permits was nothing 

more than a malicious attack upon the DEP and the affected permittee. Lucchino, 

809 A.2d at 269. “[T]he EHB recognized that a citizen has a right to challenge 

agency actions that conflict with the law and directly affect the citizen” and therefore 

elected to require a higher burden of proof to justify an award of costs and fees in 

such a situation. Id. at 269-70. Implicitly, the EHB recognized that to do otherwise, 

by setting a lower bar for such awards, would likely dissuade people from exercising 

their right to challenge permit approvals, due to the prospective financial 

repercussions. The Supreme Court agreed with the EHB, stating: 

[A]ny grant of attorney’s fees against an individual litigant 

in a suit against his government, has a potential “chilling 

effect” on the willingness of the ordinary citizen to pursue 

resolution of his disputes in the courts. However, 

recognizing that we must strike a delicate balance, it is 

equally important that this [concern] not be employed to 

defeat the protections against frivolous suits afforded to a 

defendant.

Id. at 270. Here, however, there is no concern about impinging upon such rights, as 

it is a permittee, i.e., Sunoco, rather than an objector, which is the subject of the atissue fee application. As such, a standard lower than “bad faith” in this situation 

would have no effect on Sunoco’s ability or desire to challenge permitting actions 

taken by the DEP. This lower standard could theoretically impact a permittee’s 

initial decision to exercise its property rights, due to a permittee’s need to factor in 

the possibility, however remote, of such costs and fees. Such a concern is

nevertheless too attenuated to justify using a bad faith requirement, as there is no 
EC - 4

guarantee that a permit application will be approved upon review by the DEP (a 

review process that should minimize the risk of litigation, if done properly), or that 

a given permitting decision will be subsequently challenged by a third party. 

The EHB’s use of a bad faith standard to evaluate Clean Air Council, The 

Delaware Riverkeeper Network, and Mountain Watershed Association, Inc.’s joint 

fee application was thus an abuse of discretion. It follows, then, that the EHB’s 

February 19, 2019 decision should be vacated in part, as well as that this matter 

should be remanded to the EHB for further proceedings, so that it can use a proper 

standard to evaluate this fee application. Therefore, I respectfully dissent from the 

majority, to the extent it concluded otherwise. 

__________________________________

ELLEN CEISLER, Judge