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Arsenal Coal Co. v. Commonwealth, Dep't of Envtl. Resources

Citation: 14 ELR 20550
No. No. 17 E.D. Appeal Docket, 1983, 477 A.2d 1333/505 Pa. 198, (Pa., 05/31/1984)

The court holds that coal companies have the right to pre-enforcement judicial review of Pennsylvania's anthracite coal regulatory program, enacted to secure primary regulatory jurisdiction over certain aspects of anthracite coal mining under the federal Surface Mining Control and Reclamation Act. The court states that it has equity jurisdiction to prevent enforcement of regulations if the regulatory body has exceeded its authority. Though recognizing that it must refrain from exercising such power when an adequate statutory remedy exists, the court holds that the existing statutory remedy — review of a regulation by the Environmental Hearing Board only after the Department of Environmental Resources has taken action to apply the questionable regulation — is inadequate. The effect of the challenged regulations upon the anthracite industry will produce sufficiently direct and immediate hardship to make the challenge justiciable in advance of enforcement. The alternatives to this challenge are not satisfactory because challenging through noncompliance would result in penalties and great uncertainty, and submission to the regulations allegedly would substantially impair the cash flow of the companies.

One justice dissents, arguing that appellants should not be allowed to proceed on the simple assertion that the entire program is invalid. The coal companies have not given any specific reasons why any particular regulations are invalid. Those challenging the regulations should present specific challenges to the application of specific regulations to the Environmental Hearing Board.

The court reverses the Commonwealth Court's dismissal of appellants' petition and remands.

Counsel for Appellants
Stephen C. Braverman, Steven L. Friedman
Dilworth, Paxson, Kalish & Kauffman
2600 The Fidelity Bldg., Philadelphia PA 19109
(215) 875-7000

Counsel for Appellees
Barbara Brandon, John C. Dernbach
Department of Environmental Resources
514 Executive House, P.O. Box 2357, Harrisburg PA 17120
(717) 787-4449

Mr. Chief Justice Nix did not participate in the consideration or decision of this case.

Mr. Justice McDermott did not participate in the consideration or decision of this case.

Mr. Justice Zappala files a dissenting opinion.