PRIOR PRINTER'S NO. 4017 PRINTER'S NO. 4182
No. 2971 Session of 1994
INTRODUCED BY GEORGE, MIHALICH, STEELMAN, M. COHEN, LEVDANSKY,
CLARK, FAIRCHILD, BAKER, HALUSKA, DeLUCA, PISTELLA,
MANDERINO, MUNDY, MAITLAND, TRELLO AND BROWN, JUNE 22, 1994
AS REPORTED FROM COMMITTEE ON CONSERVATION, HOUSE OF
REPRESENTATIVES, AS AMENDED, SEPTEMBER 28, 1994
AN ACT
1 Providing for the protection of public participation in
2 environmental matters, for a motion to strike and for certain
3 damages.
4 The General Assembly finds and declares as follows:
5 (1) This Commonwealth has benefited from the
6 participation of its citizens in the making, IMPLEMENTING AND <--
7 ENFORCING of environmental law and regulations.
8 (2) There has been a disturbing increase in lawsuits
9 brought primarily to chill the valid exercise of the
10 constitutional rights of freedom of speech and petition for
11 the redress of grievances. It is in the public interest to
12 encourage continued participation in matters of public
13 significance, and this participation should not be chilled
14 through abuse of the judicial process.
15 (3) The threat of personal damages and litigation costs
16 can be and has been used as a means of harassing,
17 intimidating or punishing individuals, unincorporated
1 associations, not-for-profit corporations and others who have
2 involved themselves in public affairs.
3 (4) The interests of the citizens of this Commonwealth
4 are served by stopping suits seeking to undermine citizen
5 participation in the making of State and local environmental
6 policy AND IN IMPLEMENTING AND ENFORCING ENVIRONMENTAL LAW <--
7 AND REGULATIONS.
8 (5) It is the policy of this Commonwealth that the
9 rights of citizens to participate freely in the public
10 process OF MAKING, IMPLEMENTING AND ENFORCING ENVIRONMENTAL <--
11 LAW AND REGULATIONS must be safeguarded with great diligence.
12 The laws of this Commonwealth must provide the utmost
13 protection for the free exercise of speech, petition and
14 association rights, particularly where such rights are
15 exercised in a public forum with respect to issues of public
16 concern.
17 The General Assembly of the Commonwealth of Pennsylvania
18 hereby enacts as follows:
19 Section 1. Short title.
20 This act shall be known and may be cited as the Environmental
21 Policy Participation Law.
22 Section 2. Definitions.
23 The following words and phrases when used in this act shall
24 have the meanings given to them in this section unless the
25 context clearly indicates otherwise:
26 "Act in furtherance of a person's right of petition or free
27 speech under the United States Constitution or the Constitution
28 of Pennsylvania in connection with a public issue." Any written
29 or oral statement or writing made before a legislative,
30 executive or judicial proceeding, or any other official
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1 proceeding authorized by law; any written or oral statement or
2 writing made in connection with an issue under consideration or
3 review by a legislative, executive or judicial body, or any
4 other official proceeding authorized by law; or any written or <--
5 oral statement or writing made in a place open to the public or
6 a public forum in connection with an issue of public interest; <--
7 OR ANY WRITTEN OR ORAL STATEMENT OR WRITING MADE TO A GOVERNMENT
8 AGENCY IN CONNECTION WITH THE IMPLEMENTATION AND ENFORCEMENT OF
9 ENVIRONMENTAL LAW AND REGULATIONS.
10 "Action involving public petition and participation." An
11 action, claim, cross-claim or counterclaim for damages that is
12 brought by a public applicant or permittee and is materially
13 related to any efforts of the defendant to report on, comment
14 on, rule on, challenge or oppose such application or permission
15 in a matter related to environmental policy OR TO REQUEST OR <--
16 PURSUE IMPLEMENTATION AND ENFORCEMENT OF ENVIRONMENTAL LAW OR
17 REGULATIONS.
18 "Communication." Any statement, claim, allegation in a
19 proceeding, decision, protest, writing, argument, contention or
20 other expression.
21 "ENFORCEMENT OF ENVIRONMENTAL LAW AND REGULATIONS." ANY <--
22 ACTIVITY RELATED TO THE IDENTIFICATION AND ELIMINATION OF
23 VIOLATIONS OF ENVIRONMENTAL LAWS AND REGULATIONS, INCLUDING
24 INVESTIGATIONS OF ALLEGED VIOLATIONS, INSPECTIONS OF ACTIVITIES
25 SUBJECT TO REGULATION UNDER ENVIRONMENTAL LAW AND REGULATIONS
26 AND RESPONSES TAKEN TO PRODUCE CORRECTION OF THE VIOLATIONS.
27 "Government agency." The Federal Government, the
28 Commonwealth and all of its departments, commissions, boards,
29 agencies and authorities, and all political subdivisions and
30 their authorities.
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1 "IMPLEMENTATION OF ENVIRONMENTAL LAW AND REGULATIONS." ANY <--
2 ACTIVITY RELATED TO THE DEVELOPMENT AND ADMINISTRATION OF
3 ENVIRONMENTAL PROGRAMS DEVELOPED UNDER ENVIRONMENTAL LAW AND
4 REGULATIONS.
5 "Public applicant or permittee." Any person who has applied
6 for or obtained a permit, zoning change, lease, license,
7 certificate or other entitlement for use or permission to act
8 from any government body, or any person with an interest,
9 connection or affiliation with such person that is materially
10 related to such application or permission.
11 Section 3. Action for damages.
12 In an action involving public petition and participation,
13 damages may only be recovered if the plaintiff, in addition to
14 all other necessary elements, shall have established by clear
15 and convincing evidence that any communication which gives rise
16 to the action was made with knowledge of its falsity or with
17 reckless disregard of whether it was false, where the truth or
18 falsity of such communication is material to the cause of action
19 at issue AND THAT THE DEFENDANT'S ACTS CAUSED LEGALLY ACTIONABLE <--
20 INJURY TO THE PLAINTIFF.
21 Section 4. Motion to strike.
22 (a) General rule.--A cause of action against a person
23 arising from any act of that person in furtherance of the
24 person's right of petition or free speech under the United
25 States Constitution or the Constitution of Pennsylvania in
26 connection with a public issue shall be subject to a special
27 motion to strike unless the court determines that the plaintiff
28 has established BY CLEAR AND CONVINCING EVIDENCE that there is a <--
29 probability SUBSTANTIAL LIKELIHOOD that the plaintiff will <--
30 prevail on the claim. In making its determination, the court
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1 shall consider the pleadings and supporting and opposing
2 affidavits stating the facts upon which the liability or defense
3 is based. THE COURT SHALL ADVANCE ANY MOTION TO STRIKE SO THAT <--
4 IT MAY BE HEARD AND DETERMINED WITH AS LITTLE DELAY AS POSSIBLE.
5 (B) DISCOVERY.--THE COURT SHALL STAY ALL DISCOVERY
6 PROCEEDINGS IN THE ACTION UPON THE FILING OF A MOTION TO STRIKE,
7 PROVIDED, HOWEVER, THAT THE COURT, ON MOTION AND AFTER A HEARING
8 AND FOR GOOD CAUSE SHOWN, MAY ORDER THAT SPECIFIED DISCOVERY BE
9 CONDUCTED. THE STAY OF DISCOVERY SHALL REMAIN IN EFFECT UNTIL
10 NOTICE OF THE ENTRY OF THE ORDER RULING ON THE MOTION TO STRIKE.
11 (b) (C) Determination not evidence.--If the court determines <--
12 that the plaintiff has established a probability BY CLEAR AND <--
13 CONVINCING EVIDENCE THAT THERE IS A SUBSTANTIAL LIKELIHOOD that
14 he will prevail on the claim, neither that determination nor the
15 fact of that determination shall be admissible in evidence at
16 any later stage of the case, and no burden of proof or degree of
17 proof otherwise applicable shall be affected by that
18 determination.
19 (c) (D) Time of filing.--The special motion may be filed <--
20 within 60 days of the service of the complaint or, in the
21 court's discretion, at any later time upon terms it deems
22 proper.
23 Section 5. Attorney fees.
24 If a person successfully resists DEFENDS AGAINST an action <--
25 involving public petition or participation under this act, that
26 person shall be awarded reasonable attorney fees and the costs
27 of litigation. If the person prevails in part, the court may
28 award reasonable attorney fees and costs of litigation or an
29 appropriate portion thereof. A PERSON SUCCESSFULLY DEFENDS <--
30 AGAINST AN ACTION IF THE PERSON PREVAILS ON A MOTION TO STRIKE A
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1 CAUSE OF ACTION UNDER SECTION 4 OR LATER PREVAILS ON THE MERITS
2 IN THE ACTION.
3 SECTION 6. INTERVENTION OF GOVERNMENT AGENCY.
4 THE GOVERNMENT AGENCY INVOLVED IN THE ACT IN FURTHERANCE OF A
5 PERSON'S RIGHT OF PETITION OR FREE SPEECH UNDER THE CONSTITUTION
6 OF THE UNITED STATES OR THE CONSTITUTION OF PENNSYLVANIA IN
7 CONNECTION WITH A PUBLIC ISSUE SHALL HAVE THE RIGHT TO INTERVENE
8 OR OTHERWISE PARTICIPATE AS AN AMICUS CURIAE IN THE ACTION
9 INVOLVING PUBLIC PETITION AND PARTICIPATION.
10 Section 6 7. Construction of act. <--
11 Nothing in this act shall be construed to limit any
12 constitutional, statutory or common-law protections of
13 defendants to actions involving public petition and
14 participation.
15 Section 7 8. Repeals. <--
16 All acts and parts of acts are repealed insofar as they are
17 inconsistent with this act.
18 Section 8 9. Effective date. <--
19 This act shall take effect immediately.
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