PRINTER'S NO. 387
No. 374 Session of 1999
INTRODUCED BY GEORGE, DeWEESE, SURRA, PESCI, TRAVAGLIO,
SCRIMENTI, M. COHEN, MUNDY, GIGLIOTTI, LAUGHLIN, TIGUE,
MAITLAND, STURLA, SHANER, SANTONI, HARHAI, MICHLOVIC,
CALTAGIRONE, PLATTS, GORDNER, EACHUS, VAN HORNE, TRELLO,
STABACK, BARD, YOUNGBLOOD, WALKO, BAKER, ORIE, DeLUCA,
BELFANTI, TANGRETTI, WOJNAROSKI, MANDERINO, STEELMAN,
LEVDANSKY, McCALL, MELIO, JOSEPHS, CURRY, SOLOBAY, YUDICHAK,
FREEMAN, RUFFING, DALEY AND GRUCELA, FEBRUARY 8, 1999
REFERRED TO COMMITTEE ON ENVIRONMENTAL RESOURCES AND ENERGY,
FEBRUARY 8, 1999
AN ACT
1 Providing for the protection of public participation in
2 environmental matters, for a motion to strike and for certain
3 damages.
4 The General Assembly finds and declares as follows:
5 (1) This Commonwealth has benefited from the
6 participation of its citizens in the making, implementing and
7 enforcing of environmental law and regulations.
8 (2) There has been a disturbing increase in lawsuits
9 brought primarily to chill the valid exercise of the
10 constitutional rights of freedom of speech and petition for
11 the redress of grievances. It is in the public interest to
12 encourage continued participation in matters of public
13 significance, and this participation should not be chilled
14 through abuse of the judicial process.
15 (3) The threat of personal damages and litigation costs
1 can be and has been used as a means of harassing,
2 intimidating or punishing individuals, unincorporated
3 associations, not-for-profit corporations and others who have
4 involved themselves in public affairs.
5 (4) The interests of the citizens of this Commonwealth
6 are served by stopping suits seeking to undermine citizen
7 participation in the making of State and local environmental
8 policy and in implementing and enforcing environmental law
9 and regulations.
10 (5) It is the policy of this Commonwealth that the
11 rights of citizens to participate freely in the public
12 process of making, implementing and enforcing environmental
13 law and regulations must be safeguarded with great diligence.
14 The laws of this Commonwealth must provide the utmost
15 protection for the free exercise of speech, petition and
16 association rights, particularly where such rights are
17 exercised in a public forum with respect to issues of public
18 concern.
19 (6) Frivolous appeals and civil actions waste limited
20 resources, delay appropriate activities and hinder the proper
21 implementation of environmental laws and regulations.
22 The General Assembly of the Commonwealth of Pennsylvania
23 hereby enacts as follows:
24 Section 1. Short title.
25 This act shall be known and may be cited as the Environmental
26 Policy Participation Law.
27 Section 2. Definitions.
28 The following words and phrases when used in this act shall
29 have the meanings given to them in this section unless the
30 context clearly indicates otherwise:
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1 "Act in furtherance of a person's right of petition or free
2 speech under the United States Constitution or the Constitution
3 of Pennsylvania in connection with a public issue." Any written
4 or oral statement or writing made before a legislative,
5 executive or judicial proceeding, or any other official
6 proceeding authorized by law; any written or oral statement or
7 writing made in connection with an issue under consideration or
8 review by a legislative, executive or judicial body, or any
9 other official proceeding authorized by law; any written or oral
10 statement or writing made in a place open to the public or a
11 public forum in connection with an issue of public interest; or
12 any written or oral statement or writing made to a government
13 agency in connection with the implementation and enforcement of
14 environmental law and regulations.
15 "Enforcement of environmental law and regulations." Any
16 activity related to the identification and elimination of
17 violations of environmental laws and regulations, including
18 investigations of alleged violations, inspections of activities
19 subject to regulation under environmental law and regulations
20 and responses taken to produce correction of the violations.
21 "Government agency." The Federal Government, the
22 Commonwealth and all of its departments, commissions, boards,
23 agencies and authorities, and all political subdivisions and
24 their authorities.
25 "Implementation of environmental law and regulations." Any
26 activity related to the development and administration of
27 environmental programs developed under environmental law and
28 regulations.
29 Section 3. Immunity from suit.
30 A person who acts in furtherance of the person's right of
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1 petition or free speech under the Constitution of the United
2 States or the Constitution of Pennsylvania in connection with an
3 issue related to enforcement or implementation of environmental
4 law or regulation shall be immune from civil liability in any
5 action regardless of intent or purpose except where the
6 communication to the government agency is not genuinely aimed at
7 procuring a favorable governmental action, result or outcome. A
8 communication is not genuinely aimed at procuring a favorable
9 governmental action, result or outcome if it is not material or
10 relevant to the enforcement or implementation of environmental
11 law or regulation.
12 Section 4. Motion to strike.
13 (a) General rule.--A cause of action against a person
14 arising from any act of that person in furtherance of the
15 person's right of petition or free speech under the United
16 States Constitution or the Constitution of Pennsylvania in
17 connection with a public issue shall be subject to a special
18 motion to strike unless the court determines that the plaintiff
19 has established that there is a substantial likelihood that the
20 plaintiff will prevail on the claim. In making its
21 determination, the court shall consider the pleadings and
22 supporting and opposing affidavits stating the facts upon which
23 the liability or defense is based. The court shall advance any
24 motion to strike so that it may be heard and determined with as
25 little delay as possible.
26 (b) Discovery.--The court shall stay all discovery
27 proceedings in the action upon the filing of a motion to strike,
28 provided, however, that the court, on motion and after a hearing
29 and for good cause shown, may order that specified discovery be
30 conducted. The stay of discovery shall remain in effect until
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1 notice of the entry of the order ruling on the motion to strike.
2 (c) Determination not evidence.--If the court determines
3 that the plaintiff has established that there is a substantial
4 likelihood that he will prevail on the claim, neither that
5 determination nor the fact of that determination shall be
6 admissible in evidence at any later stage of the case, and no
7 burden of proof or degree of proof otherwise applicable shall be
8 affected by that determination.
9 (d) Time of filing.--The special motion may be filed within
10 60 days of the service of the complaint or, in the court's
11 discretion, at any later time upon terms it deems proper.
12 Section 5. Attorney fees.
13 If a person successfully defends against an action under this
14 act, that person shall be awarded reasonable attorney fees and
15 the costs of litigation. If the person prevails in part, the
16 court may award reasonable attorney fees and costs of litigation
17 or an appropriate portion thereof. A person successfully defends
18 against an action if the person prevails on a motion to strike a
19 cause of action under section 4 or later prevails on the merits
20 in the action.
21 Section 6. Intervention of government agency.
22 The government agency involved in the act in furtherance of a
23 person's right of petition or free speech under the Constitution
24 of the United States or the Constitution of Pennsylvania in
25 connection with a public issue shall have the right to intervene
26 or otherwise participate as an amicus curiae in the action
27 involving public petition and participation.
28 Section 7. Abuse of legal process.
29 In addition to other costs allowable by general rule or
30 statute, the Environmental Hearing Board may award costs,
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1 including reasonable counsel fees if the board determines that
2 an appeal is frivolous or taken solely for delay or that the
3 conduct of the appellant is dilatory or vexatious.
4 Section 8. Construction of act.
5 Nothing in this act shall be construed to limit any
6 constitutional, statutory or common-law protections of
7 defendants to actions involving public petition and
8 participation.
9 Section 9. Repeals.
10 All acts and parts of acts are repealed insofar as they are
11 inconsistent with this act.
12 Section 10. Effective date.
13 This act shall take effect immediately.
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