Feudale v. Aqua Pennsylvania, Inc.
122 A.3d 462
| Pa. Commw. Ct. | 2015Background
- Plaintiff Richard R. Feudale sued Aqua Pennsylvania, Inc. (Aqua) and the Dept. of Conservation and Natural Resources (DCNR) challenging Aqua’s planned replacement of a century-old waterline through the Roaring Creek Tract and DCNR timbering/management there.
- Aqua previously acquired water rights/easement on the Roaring Creek Tract before the Commonwealth acquired the land; DCNR now manages the tract as part of Weiser State Forest.
- Aqua applied for and received an NPDES permit from the Department of Environmental Protection (DEP); notice was published and a public comment period occurred, but Feudale did not comment or appeal to the Environmental Hearing Board (EHB).
- Feudale sought damages, declaratory relief under the Environmental Rights Amendment and the History Code, an injunction, and alleged intentional misrepresentation by Aqua.
- Aqua and DCNR filed preliminary objections arguing, inter alia, failure to exhaust administrative remedies, failure to state claims under the Environmental Rights Amendment and History Code, sovereign immunity, lack of standing, and insufficiency of the misrepresentation and injunction claims.
- The Commonwealth Court sustained the preliminary objections and dismissed the complaint on July 22, 2015.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Exhaustion of administrative remedies for challenge to NPDES permit | Feudale contends DEP permit issuance is unlawful and seeks court relief without pursuing EHB appeal | Aqua/DCNR: Feudale failed to use the DEP/EHB process; judicial review is barred until administrative remedies exhausted | Court: Feudale must exhaust administrative remedies; dismissal for failure to appeal to EHB |
| Ability to seek permanent injunction in court without EHB appeal | Feudale argues EHB cannot grant permanent injunction so he may go directly to court | Defendants: statute provides administrative route that must be exhausted even if EHB cannot award injunction | Court: Administrative exhaustion still required before seeking injunctive/declaratory relief in court |
| Environmental Rights Amendment claim against DCNR (and scope) | Feudale alleges DCNR’s timbering and approvals unreasonably degrade public natural resources and aesthetics | DCNR: Plaintiff fails to plead statutory/regulatory noncompliance or facts showing harm outweighs benefits under balancing test | Court: Complaint lacks facts to show noncompliance or that environmental harm so outweighs benefits that action is an abuse of discretion; ER A claim dismissed |
| Misrepresentation claim against Aqua | Feudale alleges Aqua submitted false/misleading information in its NPDES application | Aqua: Any misrepresentations were to DEP; Feudale did not justifiably rely on them as required for fraud claim | Court: No justifiable reliance alleged; third-party misrepresentation claim fails and is dismissed |
Key Cases Cited
- Funk v. Dep’t of Envtl. Prot., 71 A.3d 1097 (Pa. Cmwlth.) (administrative-exhaustion principles and appeal to EHB)
- Robinson Township v. Commonwealth, 83 A.3d 901 (Pa.) (Environmental Rights Amendment framework and balancing considerations)
- Pennsylvania Envtl. Def. Found. v. Commonwealth, 108 A.3d 140 (Pa. Cmwlth.) (application of ER A causation/balancing test and standards for relief)
- Bortz v. Noon, 729 A.2d 555 (Pa.) (elements of intentional misrepresentation/fraud and requirement of justifiable reliance)