“The aesthetic, environmental and quality of life considerations discussed in Franklin Township are equally applicable here.”
How later courts described this case
- “The aesthetic, environmental and quality of life considerations discussed in Franklin Township are equally applicable here.”
- county has standing to appeal executive agency order related to operation of sanitary landfill by corporate permit holder
Written by the judges who cited it.
The opinion
NIX, Justice,
dissenting.
I dissent. The majority has today compounded the error made in Franklin Township v. Department of Environmental Resources, 500 Pa. 1 , 452 A.2d 718 (1982) wherein it held that a county possesses standing to challenge the Department of Environmental Resources’ (DER) issuance of a permit for a solid waste disposal facility. “The legislature, in enacting the Solid Waste Management Act, sought to achieve a balance between the statewide interests of developing an environmentally sound system of hazardous waste disposal and the localized interests of communities throughout the State.” Id., 500 Pa. at 14 , 452 A.2d at 725 (Nix, J. dissenting).
Although I am still of the opinion that “[t]he Act reflects the legislative policy to establish DER as the vehicle for overall supervision and ultimate control of the critical determination regarding when permits shall be granted, consistent with the public health and protection of the environment,” id., today’s extension of Franklin Township into DER’s enforcement procedures constitutes a further unwarranted and continuing infringement on that department’s regulatory power.
*518 The majority has ignored the distinct policy considerations underlying the issuance of a permit, which establishes the existence of a solid waste landfill, as opposed to the issuance of an enforcement order, which is intended to regulate the day-to-day operation of a waste facility to ensure compliance with the Act.
Enforcement of the Act’s requirements is peculiarly within DER’s expertise in the area and deference to such administrative decision-making must be afforded to the department. In order to fulfill its mandated statutory responsibilities, DER must possess a certain degree of discretion in determining when enforcement proceedings are required and what remedies should be employed to ensure compliance.
As DER correctly notes,
Acceptance ... of the county’s position would result in a broad rule of law holding that, once an administrative agency exercises its prosecutorial discretion and takes an action, not only the action itself, but also all the possible enforcement remedies and options which could have been selected by the administrative agency, may be the subject of a third-party appeal. The effect of the County’s argument, if accepted by this Court would be to create a class of private citizen Attorneys General who would, whenever an agency took action, be able to file suit challenging whether the action taken should have imposed more severe sanctions or required different actions from the violator.
(Reply Brief for Respondent at 28.) (emphasis in original).
The majority’s holding opens the door to a plethora of third-party lawsuits which can effectively frustrate and render illusory DER’s obligation to implement the provisions of the Act. The legislature has rendered its judgment that DER shall be the representative of the interests of the citizens of this Commonwealth in protecting the environment. That responsibility should not be abrogated by this Court.