A recent Law 360 story by Matt Fair, “Pa. Enviro Board Slashes Fee Award in Pipeline Challenge,” reports that a Pennsylvania environmental appeals board granted only a fraction of a quarter-million-dollar fee request from an attorney representing a pair of landowners involved in a fight over permits for a controversial Sunoco LP natural gas pipeline, citing the "limited success" of the challengers and their refusal to accept a settlement.

While Huntington County landowners Stephen and Ellen Gerhart managed to convince the state’s Environmental Hearing Board last year that Sunoco should be held to a higher standard in regard to how much the company is required to restore a wetland on their property after the pipeline's construction, the board said that their attorney, Rich Raiders of Raiders Law PC, could only recover just over $13,000 of the nearly $266,000 sought in the case.

In reaching its decision, the board noted that Raiders had only managed to score a victory on one of the several objections lodged to permits the state’s Department of Environmental Protection issued to Sunoco for construction of the pipeline.  “On a positive note, thanks to the Gerharts’ efforts, a 0.066-acre wetland will be restored,” the board said.  “That having been said, it must also be said that the Gerharts achieved a rather limited degree of success in the context of their appeal as a whole.”

The board also said that the Gerharts refusal to accept a settlement offer that Sunoco first put on the table in September 2017 — a deal that would have provided them with the same result they ultimately received by litigating the case all the way to the end — also weighed in favor of a reduced fee award.

“Although the appeal continued on at great expense for two more years, precisely the same result … could have been amicably attained by September 2017,” the board said, noting that it only learned about the settlement offer as it received briefs in the fee fight.  “Given the amount of attention devoted to this matter, this revelation is rather unsettling.”

The Gerharts claimed in February 2017 that permits issued by the state’s Department of Environmental Protection for the Sunoco pipeline — which is intended to ferry natural gas from the Marcellus Shale region of western Pennsylvania to a Philadelphia-area refinery — misclassified a wetland on their property.  The misclassification, the couple said, would have allowed Sunoco to get away with a less fulsome remediation of the property once construction of the gas pipeline was finished.

While the Gerharts argued that they should be allowed to recover fees from DEP for efforts to “correct a programmatic error in how wetlands are protected in Pennsylvania,” the board disagreed that the public should be put on the hook for the couple’s efforts.