Case Updates
Pennsylvania Supreme Court cites U.S. Chamber’s amicus brief in opinion reversing denial of pre-enforcement judicial review
December 29, 2015
In a victory for EQT Production Company, the Pennsylvania Supreme Court ruled that Pennsylvania courts may exercise pre-enforcement judicial review to clarify the scope of the law. The high court held “that the impact of the Department’s threat of multi-million dollar assessments against EPC was sufficiently direct, immediate, and substantial to create a case or controversy justifying pre-enforcement judicial review via a declaratory judgment proceeding, and that exhaustion of administrative remedies relative to the issues of statutory interpretation that the company has presented was unnecessary.”
The Supreme Court’s opinion cited a portion of the Chamber’s amicus brief.
U.S. Chamber files amicus brief
May 11, 2015
In an amicus brief, the U.S. Chamber argued to the Pennsylvania Supreme Court that state law permits pre-enforcement judicial review to clarify the proper interpretation of Pennsylvania’s Clean Streams Law. In this case, Pennsylvania’s Department of Environmental Protection, in a proposed “voluntary consent decree” with EQT Productions over leakage from a hydraulic fracturing impoundment, advanced a novel and, EQT argued, unlawful liability theory under the Clean Streams Law. EQT sought a declaratory judgment to clarify the proper interpretation of the Clean Streams Law, and the Pennsylvania Supreme Court agreed to decide whether Pennsylvania courts may exercise pre-enforcement judicial review to clarify the scope of the law.
The Chamber’s amicus brief argued that without the opportunity for pre-enforcement judicial review, regulated entities face a choice between two unacceptable alternatives: they may either surrender their legal positions and agree to pay millions as part of a “voluntary” consent decree; or they may maintain their legal positions but wait for regulators to file an enforcement action at some uncertain point in the future.
Robert C. Heim, Steven Gill Bradbury, Jennings Durand, and Ellen L. Mossman of Dechert LLP served as co-counsel for the amici in this case.