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: 19990H0374B0387 - 2 -
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 19990H0374B0387 - 3 -
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 19990H0374B0387 - 4 -
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, 19990H0374B0387 - 5 -
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. A8L27DMS/19990H0374B0387 - 6 -