Written by: Thane Zeeh
Environmental laws affect Pennsylvanians in significant ways, whether through easements impacting individual land ownership,[1] the discharge of industrial waste and pollution in water sources,[2] or hazardous air pollution harming air quality.[3]
One of the most significant legal mechanisms that impact the environment are environmental regulations.[4] Environmental regulations, in contrast to legislature passed environmental statutes, are drafted and passed or amended by government departments.[5] For example, the Pennsylvania Department of Environmental Protection (DEP) approves regulations for adoption by agencies, such as the Environmental Quality Board (EQB) which is then responsible for promulgating the regulations governing the DEP’s operations.[6] Once adopted by the EQB, the regulation or regulatory amendment enters a lengthy review process involving numerous government entities, including the Office of General Counsel.[7] It is then subject to a public comment period and must secure approval from the Attorney General’s Office before becoming law.[8]
Under Title 25 of the Pennsylvania Environmental Protection code, these regulations and amendments are created to clarify ambiguities and crystallize processes within environmental statutes.[9] For example, section 271.1 of the regulatory code supports the Municipal Waste Planning Act, by providing clearer and more precise definitions for words and language found within the Act.[10]
Yet, despite best efforts to carry out regulations with the best interest of Pennsylvanians in mind, individuals and communities negatively affected by these measures may feel powerless to advocate for changes to the regulations or to prevent the adoption of new regulations altogether. Fortunately, the public comment period provides an effective way to protest and act in response to these effects.
A regulatory proposal, whether a proposition for a new regulation or an amendment to already existing regulatory codes, must be open for public comments during a public comment period.[11] The public comment period allows affected individuals to comment on and protest new regulations or amendments which are then evaluated by the EBQ and DEP.[12] Notably, such public comments can, and have, significantly influenced the regulatory process.
For example, during the regulatory redesignation of Valley Creek, a tributary, from Cold Water Fishes (a water quality standard sufficient to support cold-water species like those in the Salmonidae family and their habitats)[13] to Exceptional Value (EV) (the highest level of environmental protection under the state), over 1,300 public comments were submitted regarding the redesignation during the public comment period, with an overwhelming majority supporting the tributary’s more protective EV designation.[14] These public comments significantly influenced the EQB to adopt the tributary’s’ EV classification, despite the DEP[15] initially recommending a lesser designation of Cold Water Fishes and in turn, lesser environmental protection.[16] This demonstrates that public participation in the public comment period can directly shape regulatory outcomes, highlighting the importance of community input in environmental decision-making.
Still the question remains, how do Pennsylvanians participate in the public comment period? The answer here begins with the Pennsylvania Bulletin,[17] where individuals can search for the most recent volume and topic area such as environmental protection, and review actions like details of an upcoming regulatory amendment. Additionally, individuals may also comment on such regulatory changes on the DEP eComment page.[18] Finally, individuals can also sign up for the DEP eNotice program to receive updates on regulatory changes, open comment periods, and other relevant environmental matters.[19]
Pennsylvanians have opportunities to influence environmental regulations through active participation in the public comment period. The redesignation of Valley Creek Tributary highlights the power of public input in shaping outcomes. By utilizing resources like the Pennsylvania Bulletin, DEP eComment page, and eNotice program, individuals can stay informed and engaged. These tools empower Pennsylvanians to ensure environmental regulations align with their values, priorities, and needs thereby creating a more equitable environmental regulatory scheme.
[1] 68 Pa.C.S. Ch. 82, § 8201 (LexisNexis, LEXIS through P.L. 807, § 3) (defining easement as, “[a] recorded or unrecorded right-of-way, easement or similar property right acquired by eminent domain, prescription or conveyance that is used or may be used for transmitting, distributing or providing electric service by utilizing electric infrastructure”); see also Stanton v. Lackawanna Energy, Ltd., 584 Pa. 550, 565 (Pa. 2005) (defining easement as, in citing Black’s Law Dictionary, “an interest in land owned by another person, consisting in the right to use or control the land, or an area above or below it, for a specific limited purpose”).
[2] 35 Pa. Stat. Ann. § 691.307(a) (LexisNexis, LEXIS through P.L. 894 § 1).
[3] 35 Pa. Stat. Ann. § 4006.6 (LexisNexis, LEXIS through P.L. 460 § 9).
[4] The Pennsylvania Department of Environmental Protection, The Environmental Regulatory Process in Pennsylvania (last visited Jan. 9, 2025), https://files.dep.state.pa.us/Air/AirQuality/AQPortalFiles/RGGI/THE_ENVIRONMENTAL_REGULATORY_PROCESS_IN_PENNSYLVANIA.pdf.
[5] Colorado State University Libraries, What’s the Difference between Statutes and Regulations?, Colorado State University (last visited Jan. 25, 2025), https://libguides.colostate.edu/c.php?g=906786&p=6659470.
[6] WHAT IS THE EQB? https://www.dep.pa.gov/PublicParticipation/EnvironmentalQuality/Pages/WhatIsEQB.aspx (last visited Oct. 14, 2024); see also 71 PA. STAT. ANN. §§ 510-20 (LexisNexis, LEXIS through P.L. 1275, § 6). (granting the EQB the power to formulate, adopt, and promulgate rules and regulations for proper performance of the work of the department).
[7] The Pennsylvania Department of Environmental Protection, supra note 4 at 4.
[8] Id.
[9] Pa. Code tit. 25.
[10] Pa. Code § 271.1 (2014).
[11] See supra text accompanying note 8.
[12] Commonwealth of Pennsylvania, Public Participation Environmental Quality Board (last visited Jan. 13, 2025), https://www.pa.gov/agencies/dep/public-participation/environmental-quality-board.html.
[13] Pennsylvania Department of Environmental Protection, Technical Development of a Thermal Fish Index, Office of Water Programs Bureau of Clean Waters, 4 (last visited Jan. 25, 2025), https://files.dep.state.pa.us/Water/Drinking%20Water%20and%20Facility%20Regulation/WaterQualityPortalFiles/Technical%20Documentation/Thermal_Fish_Index.pdf.
[14] Rouse & Assocs.-Ship Rd. Land P’ship v. Pa. Envtl. Quality Bd., 642 A.2d 642, 328-329 (Pa. Commw. Ct. 1994).
[15] 71 PA. STAT. ANN. § 1340.501 (LexisNexis, LEXIS through P.L. 89, § 1) (renaming the Department of Environmental Resources to the Department of Environmental Protection).
[16] Id. at 392; see also Builders Ass’n of Chester & Del. Ctys. v. Commonwealth, 828 A.2d 446 (Pa. Commw. Ct. 2003) (noting that the DEP, after receiving over 600 comments from 234 individuals and organizations during the public comment period on a proposed Stormwater Policy, revised and finalized several related documents to address public concerns before issuing the final policy).
[17] Pennsylvania Department of Environmental Protection , Pennsylvania Code & Bulletin (last visited Jan. 4, 2024), https://www.pacodeandbulletin.gov.
[18] Pennsylvania Department of Environmental Protection, eComment (last visited Jan. 4, 2024), https://www.ahs.dep.pa.gov/eComment/.
[19] Pennsylvania Department of Environmental Protection, The eNOTICE Subscription Site, (last visited Jan. 4, 2024), https://www.ahs.dep.pa.gov/eNOTICEWeb/Default.aspx.