REFERRED TO COMMITTEE ON JUDICIARY, FEBRUARY 10, 1997

VERSION: Introduced February 5, 1997 George

Providing for the protection of public participation in environmental matters, for a motion to strike and for certain damages.

The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:

(1) This Commonwealth has benefited from the participation of its citizens in the making, implementing and enforcing of environmental law and regulations.

(2) There has been a disturbing increase in lawsuits brought primarily to chill the valid exercise of the constitutional rights of freedom of speech and petition for the redress of grievances. It is in the public interest to encourage continued participation in matters of public significance, and this participation should not be chilled through abuse of the judicial process.

(3) The threat of personal damages and litigation costs can be and has been used as a means of harassing, intimidating or punishing individuals, unincorporated associations, not-for-profit corporations and others who have involved themselves in public affairs.

(4) The interests of the citizens of this Commonwealth are served by stopping suits seeking to undermine citizen participation in the making of State and local environmental policy and in implementing and enforcing environmental law and regulations.

(5) It is the policy of this Commonwealth that the rights of citizens to participate freely in the public process of making, implementing and enforcing environmental law and regulations must be safeguarded with great diligence.

The laws of this Commonwealth must provide the utmost protection for the free exercise of speech, petition and association rights, particularly where such rights are exercised in a public forum with respect to issues of public concern.

(6) Frivolous appeals and civil actions waste limited resources, delay appropriate activities and hinder the proper implementation of environmental laws and regulations.

The General Assembly of the Commonwealth of Pennsylvania hereby enacts as follows:

Section 1. Short title.

This act shall be known and may be cited as the Environmental Policy Participation Law.

Section 2. Definitions.

The following words and phrases when used in this act shall have the meanings given to them in this section unless the context clearly indicates otherwise:

"Act in furtherance of a person's right of petition or free speech under the United States Constitution or the Constitution of Pennsylvania in connection with a public issue." Any written or oral statement or writing made before a legislative, executive or judicial proceeding, or any other official proceeding authorized by law; any written or oral statement or writing made in connection with an issue under consideration or review by a legislative, executive or judicial body, or any other official proceeding authorized by law; any written or oral statement or writing made in a place open to the public or a public forum in connection with an issue of public interest; or any written or oral statement or writing made to a government agency in connection with the implementation and enforcement of environmental law and regulations.

"Enforcement of environmental law and regulations." Any activity related to the identification and elimination of violations of environmental laws and regulations, including investigations of alleged violations, inspections of activities subject to regulation under environmental law and regulations and responses taken to produce correction of the violations.

"Government agency." The Federal Government, the Commonwealth and all of its departments, commissions, boards, agencies and authorities, and all political subdivisions and their authorities.

"Implementation of environmental law and regulations." Any activity related to the development and administration of environmental programs developed under environmental law and regulations.

Section 3. Immunity from suit.

A person who acts in furtherance of the person's right of petition or free speech under the Constitution of the United States or the Constitution of Pennsylvania in connection with an issue related to enforcement or implementation of environmental law or regulation shall be immune from civil liability in any action regardless of intent or purpose except where the communication to the government agency is not genuinely aimed at procuring a favorable governmental action, result or outcome. A communication is not genuinely aimed at procuring a favorable governmental action, result or outcome if it is not material or relevant to the enforcement or implementation of environmental law or regulation.

Section 4. Motion to strike.

(a) General rule. -- A cause of action against a person arising from any act of that person in furtherance of the person's right of petition or free speech under the United States Constitution or the Constitution of Pennsylvania in connection with a public issue shall be subject to a special motion to strike unless the court determines that the plaintiff has established that there is a substantial likelihood that the plaintiff will prevail on the claim. In making its determination, the court shall consider the pleadings and supporting and opposing affidavits stating the facts upon which the liability or defense is based. The court shall advance any motion to strike so that it may be heard and determined with as little delay as possible.

(b) Discovery. -- The court shall stay all discovery proceedings in the action upon the filing of a motion to strike, provided, however, that the court, on motion and after a hearing and for good cause shown, may order that specified discovery be conducted. The stay of discovery shall remain in effect until notice of the entry of the order ruling on the motion to strike.

(c) Determination not evidence. -- If the court determines that the plaintiff has established that there is a substantial likelihood that he will prevail on the claim, neither that determination nor the fact of that determination shall be admissible in evidence at any later stage of the case, and no burden of proof or degree of proof otherwise applicable shall be affected by that determination.

(d) Time of filing. -- The special motion may be filed within 60 days of the service of the complaint or, in the court's discretion, at any later time upon terms it deems proper.

Section 5. Attorney fees.

If a person successfully defends against an action under this act, that person shall be awarded reasonable attorney fees and the costs of litigation. If the person prevails in part, the court may award reasonable attorney fees and costs of litigation or an appropriate portion thereof. A person successfully defends against an action if the person prevails on a motion to strike a cause of action under section 4 or later prevails on the merits in the action.

Section 6. Intervention of government agency.

The government agency involved in the act in furtherance of a person's right of petition or free speech under the Constitution of the United States or the Constitution of Pennsylvania in connection with a public issue shall have the right to intervene or otherwise participate as an amicus curiae in the action involving public petition and participation.

Section 7. Abuse of legal process.

In addition to other costs allowable by general rule or statute, the Environmental Hearing Board may award costs, including reasonable counsel fees if the board determines that an appeal is frivolous or taken solely for delay or that the conduct of the appellant is dilatory or vexatious.

Section 8. Construction of act.

Nothing in this act shall be construed to limit any constitutional, statutory or common-law protections of defendants to actions involving public petition and participation.

Section 9. Repeals.

All acts and parts of acts are repealed insofar as they are inconsistent with this act.

Section 10. Effective date.

This act shall take effect immediately.