Rendell Furloughs Stifle Process For Hearing Appeals Of DEP Actions

Joel Bolstein, an environmental attorney with Fox Rothschild, provided this analysis of the impact of state employee furloughs made by the Rendell Administration this week at the Environmental Hearing Board which hears appeals of actions by the Department of Environmental Protection--
When Governor Rendell announced that only 50 state employees would need to be eliminated as a result of this year's budget hole, most of us breathed a sigh of relief. That is, until we discovered that 3 of those 50 state employees being let go would come from the Pennsylvania Environmental Hearing Board (EHB).
For those of you unfamiliar with the EHB, it is an administrative board that hears appeals of final agency decisions from the PADEP. So, for example, if one of your clients receives a permit with terms that you believe are inconsistent with the regulations, you can file an appeal with the EHB and seek to have those objectionable conditions removed. Moreover, if one of your clients is issued an Order from the Department or is the subject of an enforcement action, you can file an appeal with the EHB and object to that action on the basis that it is arbitrary and capricious, an abuse of discretion or contrary to law.
The EHB also provides an important forum for citizens and citizens groups to appeal permits that they consider objectionable. A significant body of law has been developed by the EHB which provides rules of the road for permittees, citizens and citizens groups, and the Department on a whole host of issues. I have several cases now pending before the PA EHB and I consider that a meaningful part of my practice.
How did I learn that the EHB was losing three staffers? I didn't read about it in the newspaper. I read about it in Dave Hess' blog just a couple days ago.
Since then, I've learned that the EHB has lost 5 out of 6 administrative staff as a result of the recent budget cuts. First, it lost two annuitants, which function as part-time legal assistants. Then it lost 3 more full time legal assistants. There are now only two law clerks left, one of which also serves as the Acting Secretary for the Board.
Apparently, all the staffers who worked on purchasing for the Board have been cut.
What do these cuts mean for you and me and others who go before the Board? These budget cuts and the loss of critical staffers endangers the core mission of the Board. It directly impacts the ability of the Board to hold trials and deliver speedy decisions on motions and adjudications.
Because of the cuts, the Board has significantly less money available to pay for court reporters, which run about $1,000 a day. The loss of funds will have a direct impact on the ability of a lawyer to fully represent their clients in proceedings before the Board.
In the past, if you needed 10 days to put on your case, the Board would give you 10 days. With its budget cut so severely, trials will undoubtedly need to be shortened, because the Board can ill afford to pay the administrative costs and there is no mechanism for them to charge the litigants for the court time.
I've asked myself why would the Governor single out the EHB for such severe cuts? Why take 3 employees from the already small staff of the EHB instead of just cutting 3 positions from a giant Department like PennDOT?
The truth is that I can not come up with an answer.
Maybe the people doing the cutting didn't spend any time analyzing the impact of the cuts before they made them. If they had, they would have realized that the EHB serves a vitally important function. That function will become even more evident as the Marcellus Shale market develops and more and more litigants head to the EHB to address issues with Marcellus Shale permits and enforcement actions.
A weakened EHB potentially jeopardizes the growth of that industry, in that timely and efficient permit appeals will be needed. The bottom line is it is in everyone's interest that cases before the EHB move quickly and efficiently toward a just resolution.
We've stocked the EHB with Judges that are among the best environmental lawyers in the Commonwealth. It makes no sense to treat the EHB as a second class institution. The Board serves a vitally important function. Those of us who practice before the Board recognize that it functions no differently than any other court.
We'd complain loudly if Congress tried to starve the judiciary of funds needed to run fair and impartial trials. We shouldn't sit idly by while the EHB is starved of resources it needs to do the same for environmental disputes in the Commonwealth.
In the lead up to the next budget, those who practice before the Board should make their legislators aware of the important function played by the Board and the need to restore its funding.