August 3, 2018
Pennsylvania’s Environmental Quality Board (EQB) is a 20-member independent board with the primary duty of promulgating regulations for the PA Department of Environmental Protection (DEP) – except it seems to be neither independent nor in charge of promulgating the DEP’s regulations.
My colleague Michael Canavan and I recently examined this problem in an article for The Legal Intelligencer’s Energy & Environmental Law Supplement (“Environmental Quality Board: Is It Time to Make it Truly Independent?”). There are a variety of issues that keep the EQB from delivering on its assigned power and duties, including the fact that the board has had little or no staff throughout its 50-year history – placing many of its presumed duties back on the DEP. As we note in the article:
“DEP staff drafts (i.e., formulates) proposed regulations. DEP staff then drafts the comment/response document, prepared in response to public comments, without conferring with the EQB. Ultimately, it is even DEP staff that appears before the Independent Regulatory Review Commission (IRRC) to explain or defend the proposed regulations. Moreover, at EQB meetings, the attorney acting as legal counsel to the EQB is an attorney from the Bureau of Regulatory Counsel — an office within the DEP Office of Chief Counsel. EQB members usually receive regulations and related materials, which are sometimes voluminous, about two weeks before a scheduled meeting, where the agenda is controlled by DEP, and DEP staff explains the content and purpose of the proposed regulations.”
This creates legitimate questions as to how much independent analysis EQB members can provide given their proximity and dependence on the DEP and its staff.
The article explores the question in more detail and examines how the EQB’s independence (or lack thereof) was tested in connection with recently proposed amendments to oil and gas regulations, codified at 25 PA Code, Chapter 78a. We also examine the question of whether the EQB is uniquely positioned to assume additional duties relating to the Commonwealth’s Environmental Rights Amendment – if it were truly independent. Given the General Assembly’s agreement in 1970 that the EQB should function as an independent body, it would seem to make sense to provide the board with the resources needed to fulfill its statutory role.
Disclaimer: This post does not offer specific legal advice, nor does it create an attorney-client relationship. You should not reach any legal conclusions based on the information contained in this post without first seeking the advice of counsel.
About the Author:
Terry R. Bossert is a Principal in the Firm's Environmental and Energy & Utilities Practice Groups and Co-Chair of the Firm's Shale Resource Practice Group. He counsels clients on environmental regulatory matters and compliance programs, represents them in related litigation brought by environmental regulators, and administrative tribunals and courts. Learn More.