The Pennsylvania General Assembly in passing the Environmental Immunity Act intended to protect citizens from SLAPP suits (Strategic Lawsuits Against Public Participation) that would undermine participation in the establishment and enforcement of environmental law. The Supreme Court opinion issued in Pennsbury Village Associates, LLC v. McIntyre on 1/19/2011 suggests that the court might take a very narrow view of the protections offered to citizens under the Act.
Brian Glass, Senior Attorney for PennFuture, in a memo dated 2/25/2011 states that “In the wake of the Pennsbury decision, environmental advocates seeking to take full advantage of the immunity provided under the Act might consider the following precautions:
Ensure the accuracy of any statements you make. Fact-check. Provide sources whenever possible (e.g., “EPA discusses the hazards of the chemical hexavalent chromium in its Toxicological Review issued in September 2010.”). If you are uncertain about the accuracy of a statement, communicate your concern as a question (e.g., “Has DEP considered whether the discharge of the chemical hexavalent chromium would be hazardous to human health or the environment?”).
Reference the environmental laws and regulations that you are seeking to enforce or implement. Try to identify the environmental laws and regulations that govern the activity on which you are commenting. Refer to those laws and regulations in your statements (e.g., “I am testifying today because I am concerned that the issuance of this permit might violate the federal Clean Water Act and the Pennsylvania Clean Streams Law.”)
Manage your expectations of the protections currently afforded under the Environmental Immunity Act. Statements made to enforce or implement our bedrock environmental laws and regulations, like the federal Clean Water Act and Clean Air Act and the Pennsylvania Clean Streams Law and Air Pollution Control Act, are more likely to be protected under the Environmental Immunity Act than statements made to enforce or implement less- traditional environmental laws and regulations, like conservation and land use laws12. This does not mean that you should not participate in proceedings relating to these laws, or that your statements seeking to enforce or implement these laws are not protected under different laws; it simply means that they are less likely to be protected under the Environmental Immunity Act, and you should be aware of that fact.”