The plaintiff, Pennsylvania Fish and Boat Commission (“PFBC”), is an administrative agency in Pennsylvania responsible for protecting, preserving and managing fish and aquatic life. The defendant, Consol, owns and operates coal mines in both Pennsylvania and West Virginia. According to the plaintiff’s complaint, in September 2009, Consol discharged pollutants from a West Virginia mine site into Dunkard Creek. These pollutants were carried into Pennsylvania, resulting a massive fish kill.
In August 2011, PFBC requested authority from the Pennsylvania Attorney General to pursue litigation in West Virginia. To avoid federal preemption, the claims had to be “based upon the law of the state where the point source is located, in this case, West Virginia.” On August 4, the Attorney General gave the requested authorization.
In September 2001, PFBC sued Consol for nuisance, trespass and negligence under West Virginia common law. Consol moved to dismissed PFBC’s complaint, arguing that PFBC was only authorized to sue for loss of fish and aquatic life caused by violations of Pennsylvania law. The trial court agreed and PFBC appealed.
Does a Pennsylvania agency responsible for streams and waterways have standing to sue where the defendant has discharged pollutants in a neighboring state causing harm in Pennsylvania?
This case was decided by per curiam opinion.
To the address the standing issue, the Supreme Court began with the test for legal standing set forth in syllabus point 5 of Findley v. State Farm Mut. Automobile Ins. Co., 213 W.Va. 80, 576 S.E.2d 807 (2002):
"Standing is comprised of three elements: First, the party attempting to establish standing must have suffered an “injury-in-fact”—an invasion of a legally protected interest which is (a) concrete and particularized and (b) actual or imminent and not conjectural or hypothetical. Second, there must be a causal connection between the injury and the conduct forming the basis of the lawsuit. Third, it must be likely that the injury will be redressed through a favorable decision of the court."
Concluding that PFBC had, indeed, met the Findley factors, the court proceeded to “the specific question of whether PFBC, as an agency of the Commonwealth of Pennsylvania, has statutory authority and/or implicit power to bring a cause of action in West Virginia under West Virginia common law.”
Consol focused on 30 Pa. Stat. §2506(b) which provides, in part, that PFBC has authority to bring suit for the value of any fish killed “in violation of this chapter.” According to Consol, this language limited PFBC to bringing claims arising under Pennsylvania law.
But the court emphasized other, broader language appearing in §2506(a). Under a heading titled “declaration of policy,” Pennsylvania’s legislature acknowledged its interest in fish and other aquatic life. Furthermore, the state was explicitly given “standing, through its authorized agencies, to recover damages in a civil action against any person who kills any fish or injures any streams or stream beds by pollution or littering.”
The court found that §2506(a) and (b) were complementary, not contradictory. Because Pennsylvania had authorized its agencies to sue for “any fish” killed within its borders by “any person,” PFBC had express authority to bring such a suit in West Virginia alleging that the fish kill was caused by violations of West Virginia law. In addition, the court recognized that authority to sue for out-of-state wrongs was also implied--i.e., it was “reasonably incident to the agency’s duties and responsibilities to protect, preserve and manage fish within the Commonwealth of Pennsylvania.” Accordingly, the trial court’s dismissal order was reversed and the case as remanded for further proceedings.
The impact of this case is limited. However, there are two points to consider.
First, the Supreme Court appeared to give a broad interpretation to PFBC’s powers--especially in light of the important task with which it was charged. It is likely the court will do the same in any case involving a state agency whose mandate includes both protective and enforcement powers.
Second, we can expect to see future cases brought by PFBC and, perhaps, other out-of-state agencies seeking to recover damages from West Virginia polluters who cause injury, loss or other environmental effects across state lines.