Pennsylvania climate change litigation must begin its long journey at the Environmental Hearing Board

Earlier this month, in Funk v. DEP, No. 713 M.D. 2012 (Pa. Cmwlth., Opinion filed July 3, 2013), the Commonwealth Court of Pennsylvania dismissed a petition for review seeking to require the Pennsylvania Department of Environmental Protection (DEP) to submit a petition for rulemaking to regulate fossil fuel carbon dioxide emissions to the Pennsylvania Environmental Quality Board (EQB), the administrative agency responsible for developing and promulgating Pennsylvania’s environmental regulations.  The court held that the claims asserted in the petition for review were barred by the doctrine of exhaustion of administrative remedies, at least for now.

Pennsylvania law provides a mechanism for citizens to request that the EQB issue environmental regulations.  To initiate the process, citizens must file a petition for rulemaking with DEP.  The petition is required to contain certain information, including the petitioner’s contact information, a description of the action requested, suggested regulatory language, the reason for the request, and the types of persons, businesses and organizations likely to be impacted by the proposed rule.  After a petition is filed, DEP examines it to determine whether the petition satisfies the three prerequisites for submission to the EQB:  first, that it contains all of the information identified above; second, that the action requested is one that the EQB is authorized to take; and third, that the action requested does not conflict with federal law.

On October 2, 2012, Ashley Funk, an 18-year-old resident of the rural town of Mount Pleasant in southwestern Pennsylvania, along with an organization that works with youth from around the country to compel action on climate change, filed a petition for rulemaking with DEP “[f]or the promulgation of a rule to strictly limit and regulate fossil fuel carbon dioxide emissions, and to establish an effective emissions reduction strategy that will achieve an atmospheric concentration no greater than 350 ppm of carbon dioxide by 2100.”  More specifically, the petition requested a rule requiring the reduction of fossil fuel carbon dioxide emissions by 6% per year and annual progress reports on statewide greenhouse gas emissions, including an inventory and accounting.

The petition included the petitioners’ contact information, the action requested, suggested regulatory language, and the reasons for the request, including a thorough discussion of climate change and its threatened impact, both in Pennsylvania and around the world.  The petition argued that the requested action was not only authorized but indeed required by the public trust doctrine, which in Pennsylvania is codified in Article I, Section 27 of the state constitution.  That section 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 the people.”  Finally, the petition included a short section on who was likely to be impacted by the proposed rule, acknowledging that “fossil-fuel industry businesses would be affected by a required reduction in fossil fuel emissions” but also predicting an anticipated positive effect on the citizens of Pennsylvania, as well as on businesses that have transitioned to renewable energy sources.

By letter dated November 16, 2012, DEP declined to submit the petition for rulemaking to the EQB, citing three reasons:  first, that the petition requests an action that the EQB is not authorized to take because the U.S. Environmental Protection Agency (EPA) has not yet established an ambient air quality standard for carbon dioxide, and Section 4.2(c) of Pennsylvania’s Air Pollution Control Act (APCA) prohibits the EQB from adopting any “ambient air quality standard for a specific pollutant which is more stringent than the air quality standard which the EPA has adopted for the specific pollutant pursuant to section 109 of the Clean Air Act”; second, that the petition requests an action that the EQB is not authorized to take because its greenhouse gas emissions inventory and reporting provisions are contrary to the inventory and reporting requirements established by the Pennsylvania Climate Change Act (PCCA); and third, that the petition does not contain all of the information required because it does not identify the types of persons, businesses and organizations likely to be impacted by the proposed rule.

On December 21, 2012, Funk filed a notice of appeal with the Pennsylvania Environmental Hearing Board (EHB) challenging the DEP action.  In her notice, Funk asserted that DEP’s refusal to submit the petition to the EQB based on the alleged failure to identify the types of persons, businesses and organizations likely to be impacted by the proposed rule was arbitrary and capricious because the petition identified the types of parties that the petitioner believed were most likely to be impacted.  Funk also maintained that the action requested is not inconsistent with the APCA or the PCCA.  Finally, Funk asserted that to the extent that the APCA and the PCCA prevent the regulation of greenhouse gases sought in her petition for rulemaking, those statutes are inconsistent with Article I, Section 27 of the Pennsylvania Constitution and therefore are unconstitutional.

This is where things take an interesting turn.  Pennsylvania state courts have adopted the doctrine of exhaustion of administrative remedies.  That doctrine, which aims to “prevent premature judicial intervention in the administrative process and ensure that claims will be addressed by the body with expertise in the area,” requires a person challenging an agency action to exhaust all adequate and available administrative remedies before seeking relief in the courts.  There is, however, a recognized exception to this doctrine “where the constitutionality of a statutory scheme or its validity is challenged.”  Citing that exception and referencing her constitutional challenges to the APCA and the PCCA, Funk simultaneously filed a petition for review with the Pennsylvania Commonwealth Court.  In that petition, Funk essentially asserted the same objections that she raised in her notice of appeal to the EHB and requested injunctive and declaratory relief requiring DEP to submit her petition for rulemaking to the EQB.  On January 18, 2013, DEP filed preliminary objections (the Pennsylvania state court analog to a federal court motion to dismiss), asserting that the petition for review was barred by the doctrine of exhaustion of administrative remedies.

On July 3, 2013, the court sustained DEP’s preliminary objections and dismissed Funk’s petition for review.  In reaching this result, the court observed that the exception to the doctrine of exhaustion of administrative remedies “applies only to facial challenges to the constitutionality of the statute as a whole.”  Noting that Funk only challenged the constitutionality of the APCA and the PCCA “to the extent” that those statutes are held to bar her proposed regulations, the court concluded that Funk’s arguments are constitutional challenges to the statutes “as applied” to her particular case, which are not exempt from the exhaustion of administrative remedies requirement.  The court noted that the EHB might not even need to reach the constitutional questions if it were to determine either that DEP’s interpretation of the statutes was arbitrary and capricious or that DEP properly concluded that the petition failed sufficiently to identify the types of persons, businesses and organizations likely to be impacted by the proposed rule.

In light of this decision, Funk will have to complete her EHB appeal before she can pursue her climate change litigation in the courts.  But the Commonwealth Court did not discourage Funk from returning.  To the contrary, at the end of his opinion, Senior Judge James Gardner Colins emphasized that the dismissal “does not prevent Funk from pursuing her constitutional arguments before the EHB and in this Court on petition for review of the EHB’s decision, even if the EHB were to rule that it cannot address her constitutional challenges.”  With youth on her side, Ashley Funk may yet be back before the Commonwealth Court.  In the interim, we will be watching her EHB appeal with interest.

One thought on “Pennsylvania climate change litigation must begin its long journey at the Environmental Hearing Board

  1. That will be an interesting challenge, especially because PA’s Constitution does recognize a public trust duty. I wrote the brief on behalf of Colorado that argued that the Colorado Constitution does not recognize a public trust duty; Colorado regulators “implement a comprehensive air quality program that is based not on an ancient Justinian decree, but on the needs of a modern economy that must balance competing interests in environmental protection, human health, and the economic impact of regulation.” The Public Trust challenges based on state Constitutions have so far failed, but PA’s Constitution explicitly recognizes the doctrine, so this will be interesting.

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