Shirley v. Pennsylvania Legislative Reference Bureau (2024) [RGGI Intervention Appeals]

Summary:

The Pennsylvania Supreme Court allowed three nonprofit environmental groups—Citizens for Pennsylvania’s Future, Clean Air Council, and Sierra Club—to intervene in litigation over Pennsylvania’s participation in the Regional Greenhouse Gas Initiative (RGGI). Each organization was granted intervenor status based on the claims of their respective members, who alleged that the environment had negatively impacted them and that RGGI would have an immediate positive impact on climate change.

The Verdict:

The Pennsylvania Supreme Court’s majority bent over backwards to help environmental groups intervene in support of RGGI, and it endorsed findings of fact that RGGI was undoubtedly good for the environment. The majority also turned Pennsylvania’s Environmental Rights Amendment (ERA) into a tool for environmental groups or individuals to constitutionalize environmental policy, effectively taking it out of the hands of the General Assembly and into the court system.

Background:

The Department of Environmental Protection (DEP) filed Shirley after the Legislative Reference Bureau (LRB) refused to publish a rulemaking package developed by DEP to facilitate Pennsylvania’s participation in RGGI. State legislators successfully intervened and raised new claims that DEP violated the law when it promulgated the RGGI regulations.

Citizens for Pennsylvania’s Future, Clean Air Council, and Sierra Club also moved to intervene, but the Commonwealth Court refused, reasoning that DEP sufficiently represented their interests in joining RGGI.

The majority—Todd, Doughtery, Donohue, and Wecht—concluded the Commonwealth Court had abused its discretion in denying intervention to these groups because DEP did not adequately represent their interests. More specifically, whereas DEP could not raise the constitutional argument that the ERA supported the RGGI regulation, individuals within these environmental groups could.

Justice Donohue, joined by Chief Justice Todd, wrote separately to emphasize his view that the ERA creates a trustee-beneficiary relationship between the Pennsylvania government and Pennsylvania residents, who have a legally enforceable interest in vindicating their rights to certain environmental policies.

Justices Brobson and Mundy disagreed with the majority that the environmental groups should be permitted to intervene. Each pointed to precedent limiting intervention that requires a showing of interest greater than that of the general public—a showing the environmental groups did not make. Moreover, they each argued that the majority’s position made any group advancing a policy interest entitled to intervene in a suit involving that policy interest. Justice Mundy also pointed out that the environmental groups did not have any particular interest in the legal issue before the court—whether RGGI imposed a tax or a fee—and that, even if it did, the record evidence on the potential impact of RGGI did not clearly establish that it would have a positive impact on the environment.

Opinions:

Majority Opinion (Hon. Kevin M. Dougherty, joined by Chief Justice Debra Todd with the Hon. Christine and Hon. Donohue David N. Wecht)

Concurring Opinion (Justice Donohue, joined by Chief Justice Todd)

Concurring and Dissenting Opinion (Hon. Sallie Updyke Mundy)

Concurring and Dissenting Opinion (Hon. P. Kevin Brobson)