In the consolidated appeals of Clean Air Council v. PA Dep’t Envtl. Prot., the parties sought review of the orders of the Environmental Hearing Board (EHB) denying the parties’ fee applications filed pursuant to provisions of The Clean Streams Law. The Commonwealth Court quashed the Department of Environmental Protection’s (DEP) appeal and then affirmed the EHB. First, the Court ruled that neither the traditional concept of standing nor legislatively established standing was broad enough to encompass DEP’s challenge to the orders of the EHB. Here, the challenge was rooted solely in the potential, prospective effects of the disposition of a fee application under The Clean Streams Law between private parties. DEP’s authority or actions under The Clean Streams Law or the award of costs and fees against DEP thereunder were not implicated. Therefore, the Court granted the Application to Quash DEP’s appeal. As to the merits, the Court held that it was entirely within the EHB’s discretion to apply a bad faith standard, not the standard of the catalyst test, in deciding whether to impose costs and fees upon a private party permittee.
