A lert
ENVIRONMENTAL
JANUARY 2001
Pennsylvania Enacts “Anti-SLAPP Law” and Changes
Attorneys’ Fees Provisions of Coal Mining Laws
By Joel R. Burcat*
On December 20, 2000, Governor Tom Ridge signed
into law Act 138. The new law was enacted in part
to provide protection to individuals who claim to
fear so-called “strategic lawsuits against public
participation” (“SLAPP lawsuits”). A separate
section of Act 138 revises the measures already in
place providing for attorneys’ fees and costs of
litigation in coal mining cases.
enforcement or implementation of an environmental
law or regulation. The new law provides that such a
person “shall be immune from civil liability in any
resulting legal proceeding for damages where the
action or communication is aimed at procuring
favorable government action.”
“The coal mining provisions of Act 138 took effect
ANTI-SLAPP LAWSUITS PROVISION
Although only a handful of SLAPP lawsuits have been
filed in Pennsylvania, members of the General
Assembly have been concerned about the alleged
proliferation of SLAPP lawsuits. In such suits,
businesses have been alleged to bring litigation against
private citizens in retaliation for instituting inspections
and lawsuits against them for violations of
environmental laws and regulations. Also, members of
the General Assembly have expressed concern that the
fear of such retaliatory litigation has stifled citizens
from filing complaints with government officials. As a
result of these concerns, the General Assembly
responded by creating a new statutory immunity that is
designed to limit litigation against private citizens.
Act 138 provides statutory immunity for any person
who files an action in the courts to enforce an
environmental law or regulation, or who makes an
oral or written communication to a government
agency, such as the Pennsylvania Department of
Environmental Protection (“DEP”) relating to
on December 20, 2000. The anti-SLAPP provisions
become effective on February 18, 2001.”
The kinds of communication that are protected by
the statutory immunity are written or oral statements
made before a legislative, executive or judicial
proceeding, or any other official proceeding
authorized by law. Protected communications also
include those made in connection with an issue under
consideration or review by a legislative, executive or
judicial body or other official proceeding authorized by
law. In addition, communications made to a
government agency in connection with the
implementation and enforcement of environmental
laws and regulations are protected. Consequently,
the new law can be construed to apply to complaints
made by persons to legislators or DEP officials.
Although the immunity extends to communications
relating to enforcement or implementation of an
* Mr. Burcat is a partner in the Harrisburg Office of K&L and practices environmental law and litigation. He has written
and lectured frequently on both environmental law and litigation topics.
Kirkpatrick & Lockhart LLP
“environmental law” or regulation, no specific
environmental laws or regulations are identified in
Act 138. While the Clean Streams Law has almost
universally been described as an “environmental
law,” citizens seeking immunity likely will argue that
other laws also are environmental laws. These laws
could include zoning and land-use planning laws,
agricultural laws and even the cellular tower siting
provisions of telecommunications laws. It will be left
to the courts to determine which laws are
“environmental laws” for purposes of Act 138.
The immunity provision is subject to three
exceptions. The immunity will not apply if the
allegation or the communication “is not relevant or
material to the enforcement or implementation of an
environmental law or regulation” and: (1) is
knowingly false, deliberately misleading, or made
with malicious and reckless disregard for the truth or
falsity; (2) is made for the sole purpose of interfering
with existing or proposed business relationships; or,
(3) the communication is later determined to be a
wrongful use of process or an abuse of process.
In order to raise the immunity defense, a defendant in
an action brought by a regulated entity would file a
motion with the court requesting the court to conduct
a hearing to determine whether the party is protected
by the immunity. Once the motion is filed, then the
court will conduct an immunity hearing. If the
motion is denied, the moving party has an automatic
right of appeal to Commonwealth Court, during
which time all discovery is stayed. Because the
language of the provision requires that all discovery
be stayed, it appears that the non-moving party
cannot conduct discovery to prove the exceptions
against immunity provided by the Act.
The immunity applies where a person files an action
in the courts or where he or she makes an oral or
written communication to a government agency. The
law does not specifically reference appeals to the
Pennsylvania Environmental Hearing Board
(“EHB”). Consequently, the applicability of Act 138
to cases in which a private citizen files an appeal to
the EHB is questionable.
Citizens who are sued under a variety of civil causes
of action currently available in Pennsylvania may be
protected by the immunity provision of Act 138.
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These claims may include actions for defamation,
libel, slander, invasion of privacy, interference with a
contractual relationship, wrongful use of process,
abuse of process, civil conspiracy and abuse of
office.
Act 138 provides that a person who successfully
asserts the immunity defense “shall be awarded
reasonable attorneys’ fees and the costs of
litigation.” In addition, if that person only prevails
in part, the court may still make a full award or a
proportionate award.
It should be noted that Act 138 supplements and
supersedes Pennsylvania common law. Under the
common law of Pennsylvania, witnesses who testify
in judicial or legislative proceedings are provided
with “absolute immunity” as a result of testifying in
the judicial or legislative proceedings. In addition,
comments made by a witness to investigators to
encourage the bringing of charges or to assist in the
preparation of a case are protected by absolute
immunity. The statement must be related to the
proceeding, but results in a privilege regardless of
whether charges or a suit is filed.
The Act 138 immunity is broader than the common
law immunity. Also, the new law provides a
statutory mechanism for invoking its protection early
in a legal proceeding. In addition, unlike the
common law immunity, Act 138 provides for
attorneys’ fees and costs of litigation when a party
successfully – or partially successfully – invokes the
immunity defense.
Following enactment of Act 138, in a statement
issued by one of the act’s prime sponsors,
Representative Camille “Bud” George advised that
he would “work hard in the next session to
strengthen the immunity protections in [the act] so
SLAPPs can be short-circuited sooner.”
ATTORNEYS’ FEES IN COAL MINING CASES
Act 138 also provides a new mechanism for the
provision of attorneys’ fees in coal mining cases.
Under the previously existing law, the EHB could
award attorneys’ fees to “any party” where the Board
determined that the party reasonably incurred those
fees in proceedings before the EHB. In a case
brought before the Commonwealth Court of
KIRKPATRICK & LOCKHART LLP ENVIRONMENTAL ALERT
Pennsylvania in 1993, Big B Mining Company v.
DER, the Commonwealth Court ruled that the
attorneys’ fees provision must apply equally to all
parties litigating cases before the EHB. This meant
that not only private citizens, but mining companies
and the Department could be entitled to attorneys’ fees.
In Big B Mining Company, the court reviewed the
attorneys’ fees provision of the Pennsylvania Surface
Mining Conservation and Reclamation Act
(“PaSMCRA”) and allowed a mining company to
obtain an award of attorneys’ fees against the
Department resulting from the Department’s denial
of its application for a surface mining permit. The
court established a four-part test for the awarding of
attorneys’ fees and expenses of litigation under
PaSMCRA: (1) a final order must have been issued;
(2) the applicant for the fees and the 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. Considering the court’s notation that the
language of PaSMCRA would apply equally to all
parties, it was only a matter of time until a mining
company sought attorneys’ fees from a private
citizen or a citizens’ group.
In 1997, in Alice Water Protection Association v.
DEP, the EHB denied a request for attorneys’ fees
filed by a mining company against a group of
citizens that had unsuccessfully challenged the
issuance of a mining permit before the Board. The
EHB utilized the case to expand the rule in Big B
Mining Company, holding that when a permittee
sought to recover attorneys’ fees from a citizens’
group or a private individual in an unsuccessful
appeal of a permit, the permittee must demonstrate,
in addition to the four Big B Mining Company
criteria, that the appeal was brought in bad faith or
with the intent to harass or embarrass the permittee.
The following year the EHB granted an award of
attorneys’ fees and costs to a mining company
against a private citizen who had challenged the
issuance of a permit issued by DEP to the mining
company. In Lucchino v. DEP, the EHB ruled that
Mr. Lucchino, in fact, had acted in bad faith because
he had “engaged in sham litigation, with the intent to
JANUARY 2001
harass.” In January 2000, the Commonwealth Court
issued its opinion in the appeal from the case, ruling
that the award of attorneys’ fees against the private
citizen and in favor of the mining company was
supported by the record and allowing the award to
stand. The Commonwealth Court agreed with the
EHB ruling that the four-part test in Big B Mining
Company would apply and that in cases brought
against private citizens, a bad faith standard would
also apply.
Additionally, on May 6, 1997, the Federal Office of
Surface Mining (“OSM”) notified DEP that DEP’s
program failed to meet the requirements of the
Federal Surface Mining Control and Reclamation
Act (“Federal SMCRA”). OSM advised the
Commonwealth that federal regulations under
Federal SMCRA allowed attorneys’ fees and costs to
be recovered by a permittee only where the action
against the permittee was initiated “. . . in bad faith
for the purpose of harassing or embarrassing the
permittee.” Because Pennsylvania receives federal
funds for its mining program, Pennsylvania law must
be consistent with the federal law (the so-called
“primacy” program). Thus, OSM required
Pennsylvania to modify PaSMCRA to maintain
primacy.
The General Assembly in enacting Act 138
responded both to the issues raised in the court cases
and the demands of OSM. While affirming that
attorneys’ fees and costs could be awarded in coal
mining cases, Act 138 sets out different standards for
awards “to any party from the permittee”, “to any
party, other than a permittee or his representative,
from the Department”, “to a permittee from the
Department”, and “to a permittee from any party.”
Under Act 138, any party may receive an award of
attorneys’ fees from a permittee if the party “initiates
or participates in any proceeding reviewing
enforcement actions upon a finding that a violation
of a Commonwealth coal mining act, regulation or
permit has occurred or that an imminent hazard
existed.” In addition, the law requires that a party
must have “made a substantial contribution to the
full and fair determination of the issues.”
An award of fees may be made to any party, other
than a permittee, from DEP, so long as that party
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3
“initiates or participates in any proceedings
concerning coal mining activities” and prevails in
whole or in part, “achieving at least some degree of
success on the merits.” In order to obtain an award,
the party must have made “a substantial contribution
to a full and fair determination of the issues.”
Permittees may receive an award from the
Department when the permittee shows that DEP
issued an order of cessation, a compliance order or
an order to show cause why a permit should not be
suspended or revoked “in bad faith and for the
purpose of harassing or embarrassing the permittee.”
This language was enacted to meet the OSM
requirement.
Finally, the permittee may receive an award “from
any party” where the permittee demonstrates that the
other party “in bad faith and for the purpose of
harassing or embarrassing the permittee: (1) initiated
the proceeding under one or more of the coal mining
acts or the regulations promulgated pursuant to any
of those acts concerning coal mining activities; or
(2) participated in such a proceeding in bad faith for
the purpose of harassing or embarrassing the
permittee.” This language was enacted to meet the
OSM requirement.
The coal mining laws specifically addressed under
Act 138 are PaSMCRA, the Clean Streams law, the
Bituminous Mine Subsidence Act and the Coal
Refuse Disposal Control Act. A petition for an
award of costs and fees must be filed with the EHB
within 30 days of a final adjudication of the EHB.
The petition must be supported with affidavits and
other information.
that parties may receive attorneys’ fees if they have
achieved either some degree of success on the merits,
or have made a substantial contribution to the full and
“fair” determination of the issues.
An effect of Act 138 likely will be to encourage citizens
and DEP to seek to obtain attorneys’ fees against
permittees as long as they prevail in part or have made a
substantial contribution to the determination of the case.
Also, permittees might be blocked from obtaining
attorneys’ fees in most cases. In the future, when a
permittee seeks attorneys’ fees from DEP, the
permittee must show that the Department “acted in
bad faith and for the purpose of harassing or
embarrassing the permittee.” Likewise, permittees
will not be permitted to obtain fees from citizens
unless the permittee can show that the citizen acted
“in bad faith and for the purpose of harassing or
embarrassing the permittee.”
The General Assembly has established a strict
standard limiting the ability of mining companies to
obtain attorneys’ fees in cases before the EHB. In the
meantime, mining companies will find that they are
likely to be severely limited in their ability to obtain
attorneys’ fees from DEP or private citizens, even
where the company wins the appeal.
According to the provisions of Act 138, the coal mining
provisions took effect immediately upon enactment of
the statute, on December 20, 2000. The Anti-SLAPP
provisions become effective on February 18, 2001.
Act 138 represents a significant loosening of the
standard for providing awards of attorneys’ fees to
any party other than the permittee. The standard
established by the Commonwealth Court in Big B
Mining Company required the prevailing party to
have achieved both “some degree of success on the
merits” and that the party “must have made a
substantial contribution to a full and final
determination of the issues.” The new standards
established by Act 138 split up this requirement so
FOR FURTHER INFORMATION about Kirkpatrick & Lockhart’s
environmental practice, please consult the author
or one of the Kirkpatrick & Lockhart LLP office contacts listed
below. You may also visit our webpage at www.kl.com.
Joel Burcat
Rick Hosking
Roger Zehntner
Harrisburg
Pittsburgh
Boston
717.231.4518
412.355.8612
617.261.3149
jburcat@kl.com
rhosking@kl.com
rzehntner@kl.com
Kirkpatrick & Lockhart LLP
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This publication/newsletter is for informational purposes and does not contain or convey legal advice. The information herein
should not be used or relied upon in regard to any particular facts or circumstances without first consulting with a lawyer.
© 2001 KIRKPATRICK & LOCKHART LLP.
ALL RIGHTS RESERVED.