Outside Publication

Pennsylvania Companies are Allowed to Seek Pre-Enforcement Declaratory Relief, Environmental Litigation – American Bar Association Section of Litigation

Winter 2016

For decades, businesses (aka the regulated community) in Pennsylvania have operated on the premise that there is no “pre-enforcement review” of Pennsylvania’s statutes and regulations. Companies would have to await formal enforcement actions in order to “have their day in court.”

On December 29, 2015, the Pennsylvania Supreme Court changed that premise. Convinced by the arguments that the circumstances were analogous to those before the Supreme Court of the United States in Sackett v. EPA, 132 S. Ct. 137 (2012), the court ruled that, where a government agency regards a company as committing ongoing statutory violations, the company need not await enforcement or exhaust its administrative remedies with regard to potential enforcement and threats of penalties. Instead, the company may immediately file a declaratory judgment action to address the threat.