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.