Couple awarded court costs, Gerharts protested pipeline construction on their property by Phil Ray, Feb 18, 2021, Altoona Mirror
The Commonwealth Court has upheld an award of more than $13,000 in court costs and attorney’s fees to a Huntingdon County couple who vigorously protested the construction of a Sunoco pipeline across their 27 acres of land bordering Trough Creek Valley Pike.
An opinion Monday by a three-judge panel upheld an order issued by the Pennsylvania Environmental Hearing Board awarding $13,135 in costs and attorneys fees to Stephen and Ellen Gerhart.
The payment, according to the Hearing Board’s order, is to be made by the Pennsylvania Department of Environmental Protection, which appealed the order to the Commonwealth Court.
The board found that the Gerharts properly protested a classification made by the DEP concerning a portion of wetlands on their property.
The fact that the Gerharts eventually prevailed in their argument that the classification of the wetlands was improper — which affected the manner in which the land was to be restored after construction of the pipeline — validated their claim.
The Commonwealth Court pointed out that neither DEP nor Sunoco argued that the Gerharts had not met the threshold that entitled them to compensation.
The wetland in question was covered by trees and was eventually found to be a palustrine forested wetland.
The DEP had it classified as a palustrine emergent wetland, or a swamp area more likely found closer to the ocean.
According to the opinion, DEP approved Sunoco’s restoration plan based on the flawed classification.
However, the Environmental Hearing Board found that while the DEP blamed Sunoco for submitting improper wetland data sheets, the pipeline company did not act in “bad faith” or engage in any fraud.
The board ruled “Sunoco is not liable for reimbursing (the landowners) for any of their fees or costs.”
While the board’s granting of costs and attorney’s fees of just over $13,000, the Gerharts were seeking at total of $265,976 in fees paid for experts, including $50,000 in attorney’s fees, stemming from their battle against the pipeline.
Ellen Gerhart on Tuesday said that additional legal actions stemming from their dispute remain outstanding, including additional claims with the board, a lawsuit stemming from a continuing order denying them access to the pipeline right-of-way, and a pending civil rights lawsuit in the U.S. District Court for the Middle District of Pennsylvania.
She reported that during the construction of the natural gas pipeline, Sunoco removed 250 trees.
The company as part of its restoration plan planted 65 trees, but, she said, she was unhappy so far with the maintenance of the right-of-way.
Sunoco did not install protection from deer when restoring the forested condition of the land and did not properly water the trees.
The pipeline through Huntingdon County was part of a 300-plus mile effort by Sunoco to provide natural gas to the eastern states.
The pipeline in question was to end at a processing facility in Delaware County.
Gerhart was so intense in her protest that Sunoco had her enjoined from entering the construction area.
She was accused of violating the injunction issued by Huntingdon County President Judge George Zanic, and, she reported Tuesday, the injunction now prevents her from entering that portion of their land where the pipeline was constructed.
She said she has been barred from a portion of her own land for more than four years.
“You think you have land that is yours and then you find out that it might not be yours,” she said.
Ellen Gerhart’s attorney, Rich Raiders of Reading, indicated Gerhart has filed a federal civil rights lawsuit stemming from her arrest for violating Zanic’s order. That probably won’t be ready for trial until next year, he said.
The Hearing Board made its award under the Pennsylvania Clean Streams Act.
The opinion was written by Judge Michael H. Wojcik with concurrences from Commonwealth Court President Judge P. Kevin Brobson and Judge Patricia McCullough.
Raiders contended the appeal by DEP had little to do with the Gerharts, but focused more on DEP’s attempts to have Sunoco be responsible for the payments.
The Commonwealth Court summed up the appeal by quoting DEP: “This appeal raises a narrow issue — what is the proper standard to apply when considering whether a permittee (in this case, Sunoco) should be liable for attorney’s fees and costs in a third-party appeal under … the Clean Streams Law.”
DEP has 30 days to seek review of the Commonwealth Court decision by the Pennsylvania Supreme Court.