Verdict against DEP employees’ actions stirs fears…

By Chris Mondics

Inquirer Staff Writer

A federal jury’s verdict that four Pennsylvania Department of Environmental Protection employees are liable for $6.5 million in damages stemming from a series of disputed enforcement actions has triggered shock waves in Harrisburg, where officials are voicing concern that they will be held personally liable for efforts to uphold environmental laws….

“We are really concerned by the verdict, and we have a motion pending before [U.S. District Judge Joel Slomsky] to have the verdict thrown out,” said DEP Secretary John Hanger. “I believe it is a miscarriage of justice.” Hanger added that the state would also, if necessary, pay the costs of the jury award – a clear signal of concern in Harrisburg, observers said, that the verdict could cause individual DEP officials to pull back and overall undermine enforcement actions in a department that has suffered through a series of budget cuts and downsizing….

The case has drawn attention from a wide variety of environmental lawyers and officials, who described it as highly unusual. Typically, state government workers are protected by the doctrine of sovereign immunity, which bars lawsuits against government agencies exercising normal duties. In this instance, MFS overcame the sovereign-immunity barrier by alleging that the DEP officials individually violated its constitutional right of due process and free speech by improperly enforcing environmental laws and acting outside the scope of their employment.

“I see this as a problem on the enforcement side,” said Joel Bolstein, deputy secretary of the DEP from 1995 to 1998 and an environmental lawyer with the Philadelphia firm Fox Rothschild L.L.P. “Up until now, state workers in this agency never imagined that they could be subject to a discrimination claim and personal liability for making a decision on a permit.” …

To read the full article, click here:

http://www.philly.com/inquirer/home_top_stories/20100311_Verdict_against_DEP_employees__actions_stirs_fears.html

Note: This court case does not involve any aspect of gas drilling. However, if the jury decision stands, a precedent will be set that surely will have a chilling effect on DEP actions in regulating the gas industry’s activities in PA.

Organizations and individuals concerned about maintaining adequate DEP oversight of gas industry activities should consider taking action to support DEP’s effort to overturn this jury decision.

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