Funk v. Wolf

• Decision Date: 26 July 2016
• Docket Number: No. 467 M.D. 2015,467 M.D. 2015
• Citation: 144 A.3d 228
• Parties: Ashley FUNK; Otis Harrison, a minor, by his guardian Amy Lee; Lilian McIntyre, a minor, by her guardian Jennifer McIntyre; Rekha Dhillon–Richardson, a minor, by her guardian Jaskiran Dhillon; Austin Fortino, a minor, by his guardian Ruth Fortino; Darius Abrams, a minor, by his guardian Elaine Abrams; Kaia Luna Elinich, a minor, by her guardian Arianne Elinich, Petitioners, v. Tom WOLF, in his official capacity as Governor of Pennsylvania; Pennsylvania Department of Environmental Protection; John Quigley, in his official capacity as Secretary of the Pennsylvania Department of Environmental Protection; Pennsylvania Environmental Quality Board; John Quigley, in his official capacity as Chairperson of the Environmental Quality Board; Pennsylvania Public Utility Commission; Gladys M. Brown, in her official capacity as Chairperson of the Public Utility Commission; Pennsylvania Department of Conservation and Natural Resources; Cindy Adams Dunn, in her official capacity as Secretary of the Pennsylvania Department of Conservation and Natural Resources; Pennsylvania Department of Transportation; Leslie S. Richards, in her official capacity as Secretary of the Pennsylvania Department of Transportation; Pennsylvania Department of Agriculture; Russell C. Redding, in his official capacity as Secretary of the Department of Agriculture, Respondents.
• Court: Pennsylvania Commonwealth Court

144 A.3d 228

Ashley FUNK; Otis Harrison, a minor, by his guardian Amy Lee; Lilian McIntyre, a minor, by her guardian Jennifer McIntyre; Rekha Dhillon–Richardson, a minor, by her guardian Jaskiran Dhillon; Austin Fortino, a minor, by his guardian Ruth Fortino; Darius Abrams, a minor, by his guardian Elaine Abrams; Kaia Luna Elinich, a minor, by her guardian Arianne Elinich, Petitioners,

v.Tom WOLF, in his official capacity as Governor of Pennsylvania; Pennsylvania Department of Environmental Protection; John Quigley, in his official capacity as Secretary of the Pennsylvania Department of Environmental Protection; Pennsylvania Environmental Quality Board; John Quigley, in his official capacity as Chairperson of the Environmental Quality Board; Pennsylvania Public Utility Commission; Gladys M. Brown, in her official capacity as Chairperson of the Public Utility Commission; Pennsylvania Department of Conservation and Natural Resources; Cindy Adams Dunn, in her official capacity as Secretary of the Pennsylvania Department of Conservation and Natural Resources; Pennsylvania Department of Transportation; Leslie S. Richards, in her official capacity as Secretary of the Pennsylvania Department of Transportation; Pennsylvania Department of Agriculture; Russell C. Redding, in his official capacity as Secretary of the Department of Agriculture, Respondents.

No. 467 M.D. 2015

Commonwealth Court of Pennsylvania.

Argued June 6, 2016.

Decided July 26, 2016.

Kenneth T. Kristl, Wilmington, DE, for petitioners.

Kenneth L. Joel, Chief Deputy Attorney General, Harrisburg, for respondents Pennsylvania Public Utility Commission and Gladys Brown.

Robert A. Reiley, Office of Chief Counsel, Harrisburg, for respondents PA Department of Environmental Protection, et al.

BEFORE: RENÉE COHN JUBELIRER, Judge, and MICHAEL H. WOJCIK, Judge, and JAMES GARDNER COLINS, Senior Judge.

OPINION BY Judge RENÉE COHN JUBELIRER.

Before this Court in our original jurisdiction are the Preliminary Objections (POs) of the Pennsylvania Public Utility Commission (PUC) and Gladys M. Brown, in her official capacity as Chairperson of the PUC, (PUC Respondents) and the separately filed POs of Tom Wolf, in his official capacity as Governor of Pennsylvania, and various Executive Branch Departments and Secretaries acting in their official capacities (Executive Branch Respondents) to the “Second Amended Petition for Review Seeking Declaratory and Mandamus Relief” (Petition) of Ashley Funk, et al. (Petitioners).¹ Petitioners seek various forms of declaratory and mandamus relief with the goal of requiring PUC and Executive Branch Respondents (together, Respondents) “to develop a comprehensive plan” and to regulate “Pennsylvania's emissions of carbon dioxide (‘CO₂’) and other greenhouse gases (‘GHGs')” in a comprehensive manner that is “consistent with[,] and in furtherance of[,] the Commonwealth's duties and obligations under Article I, Section 27” of the Pennsylvania Constitution. Pa. Const. art. I, § 27. (Petition ¶ 1.) Petitioners allege that by not developing and implementing a comprehensive plan to regulate CO₂and GHGs in light of the present and projected deleterious effects of global climate change, Respondents have not fulfilled their constitutional obligations to not infringe upon the rights granted to the people by the Constitution and have not adequately acted as trustees of the Commonwealth's public natural resources, including the atmosphere. (Id. ) The Executive Branch Respondents object to the Petition through 12 POs and the PUC Respondents filed an additional 7 POs. For the reasons that follow, we sustain the Respondents' POs in part and dismiss the Petition.

I. THE ENVIRONMENTAL RIGHTS AMENDMENT

The claims asserted in this action relate to the rights granted to citizens of Pennsylvania by Article I, Section 27 of the Pennsylvania Constitution, commonly referred to as the “Environmental Rights Amendment” (ERA) and the respective obligations imposed upon the Commonwealth by the same. The ERA provides:

The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania's public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.

Pa. Const. art. I, § 27. The first sentence of the ERA (first provision) endows the people of Pennsylvania with the right to the described resources. Cmty. Coll. of Delaware Cnty. v. Fox, 20 Pa.Cmwlth. 335, 342 A.2d 468, 473 (1975). The rights to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment,” like all rights established in Article I of the Pennsylvania Constitution, prevent the state from acting in ways that would infringe upon such rights. Com. by Shapp v. Nat'l Gettysburg Battlefield Tower, Inc., 454 Pa. 193, 311 A.2d 588, 592 (1973). The second and third sentences (second provision) establish “that the Commonwealth is the ‘trustee’ of Pennsylvania's ‘public natural resources.’ ” Id. We have said, with regard to the second provision, that the intent of the ERA is “to place Pennsylvania's ‘public natural resources' in trust and to impose a duty on the Commonwealth, as trustee, to ‘conserve and maintain them for the benefit of all the people.’ ” Pa. Envtl. Def. Found. v. Commonwealth, 108 A.3d 140, 167 (Pa.Cmwlth.2015) (quoting the ERA) (emphasis added). A legal challenge asserting the rights established in the ERA “may proceed upon alternate theories that either the government has infringed upon citizens' rights or the government has failed in its trustee obligations, or upon both theories.” Id. at 156. (quoting Robinson Twp., Washington Cnty. v. Commonwealth, 623 Pa. 564, 83 A.3d 901, 950–51 (2013) (plurality)).

While expansive in its language, the ERA was not intended to be read in absolutist terms so as to prohibit development that enhances the economic opportunities and welfare of the people currently living in Pennsylvania. Payne v. Kassab, 468 Pa. 226, 361 A.2d 263, 273 (1976) (hereinafter, “Payne II ”); see also Robinson Twp., 83 A.3d at 958 (“the duties to conserve and maintain [public natural resources] are tempered by legitimate development tending to improve upon the lot of Pennsylvania's citizenry”). Instead, the ERA places policymakers in the “constant and difficult” position of “weighing conflicting environmental and social concerns” and “in arriving at a course of action that will be expedient as well as reflective of the high priority which constitutionally has been placed on the conservation of our natural, scenic, esthetic and historical resources.”

Payne v. Kassab, 11 Pa.Cmwlth. 14, 312 A.2d 86, 94 (1973) (hereinafter, “Payne ”). To this end, we recently described the ERA as “a thumb on the scale, giving greater weight to the environmental concerns in the decision-making process” when “environmental concerns of development are juxtaposed with economic benefits of development.” Pa. Envtl. Def. Found., 108 A.3d at 170.

Judicial review of governmental decisions implicating the ERA “must be realistic and not merely legalistic.” Payne, 312 A.2d at 94. In Payne, we established a three-fold test to determine whether a government decision complies with the ERA.

(1) Was there compliance with all applicable statutes and regulations relevant to the protection of the Commonwealth's public natural resources? (2) Does the record demonstrate a reasonable effort to reduce the environmental incursion to a minimum? (3) Does the environmental harm which will result from the challenged decision or action so clearly outweigh the benefits to be derived therefrom that to proceed further would be an abuse of discretion?

Id.²

The Payne test is particularly applicable in situations where a person challenges a government decision or action. This test is somewhat less satisfying when, as here, a person alleges that the government failed to affirmatively engage in an action required by its trusteeship duties under the ERA's second provision. When confronted with such allegations, the Supreme Court's discussion in Payne II is helpful, where the Court explained:

There can be no question that the Amendment itself declares and creates a public trust of public natural resources for the benefit of all the people (including future generations as yet unborn) and that the Commonwealth is made the trustee of said resources, commanded to conserve and maintain them.... But merely to assert that one has a common right to a protected value under the trusteeship of the State, and that the value is about to be invaded, creates no automatic right to relief. The [ERA] speaks in no such absolute terms. The Commonwealth as trustee, bound to conserve and maintain public natural resources for the benefit of all the people, is also required to perform other duties, such as the maintenance of an adequate public highway system, also for the benefit of all the people.

Payne II, 361 A.2d at 272–73. Because it is the Commonwealth, not individual agencies or departments, that is the trustee of public natural resources under the ERA, and the Commonwealth is bound to perform a host of duties beyond implementation of the ERA, the ERA must be understood in the context of the structure of government and principles of separation of powers. In most instances, the balance between environmental and other societal concerns is primarily struck by the General Assembly, as the elected representatives of the people, through legislative action. See Nat'l Solid Wastes Mgmt. Ass'n v. Casey, 143 Pa.Cmwlth. 577, 600 A.2d 260, 265 (1991), aff'd, 533 Pa. 97, 619 A.2d 1063 (1993) (holding that the Governor can only execute laws and the balance required by the ERA was achieved through legislative enactments). While executive branch agencies and departments are, from time to time,...