Pennsylvania Environmental Quality Board Accepts Climate Change Petition for Rulemaking

In a previous blog post, we discussed a decision by the Pennsylvania Commonwealth Court dismissing a petition for review filed by 18-year-old Ashley Funk seeking to require the Pennsylvania Department of Environmental Protection (DEP) to submit her petition for rulemaking to regulate fossil fuel carbon dioxide emissions to the administrative agency responsible for developing and promulgating Pennsylvania’s environmental regulations (the Pennsylvania Environmental Quality Board (EQB)).  In that decision, the Commonwealth Court held that the claims asserted in Funk’s petition for review were barred by the doctrine of exhaustion of administrative remedies.  “In light of this decision,” we wrote at the time, “Funk will have to complete [her appeal to the state administrative tribunal (the Pennsylvania Environmental Hearing Board (EHB))] before she can pursue her climate change litigation in the courts.”

As it turns out, completing her EHB appeal didn’t take Funk nearly as long as we might have expected.  On September 6, 2013, Funk filed a revised climate change petition for rulemaking.  By letter dated October 10, 2013, DEP sent Funk a letter indicating that it found her revised petition to be complete and would forward it to the EQB.  On October 24, 2013, Funk filed a motion to dismiss her EHB appeal in light of the changed circumstances.  The EHB dismissed the appeal and marked the docket closed and discontinued that same day.

DEP presented Funk’s revised climate change petition for rulemaking to the EQB at its scheduled November 19, 2013 meeting.  In its presentation, DEP found that the petition was complete, that it requests an action that can be taken by the EQB, and that the requested action does not conflict with federal law (recall that DEP had made the exact opposite findings with respect to the first two items in connection with Funk’s earlier petition for rulemaking).  Consistent with DEP’s recommendation, the EQB voted to accept Funk’s revised climate change petition for rulemaking.  A notice of acceptance was published in the Pennsylvania Bulletin on December 7, 2013.

Now that the EQB has accepted the petition, DEP must either prepare a report evaluating it within 60 days, or else indicate at the next EQB meeting (currently scheduled for January 21, 2014) how much additional time is necessary to complete the report.  Upon completing the report, DEP must send a copy to Funk and give her 30 days to submit a written response.  Based on DEP’s report and any written response received, DEP must make its final recommendation to the EQB as to whether DEP should proceed with a proposed rule based on the petition.  If DEP recommends regulatory amendments, DEP must develop a proposed rulemaking for EQB consideration within 6 months after DEP mails its report to Funk.  If DEP does not recommend regulatory amendments, DEP must present its recommendation and basis to the EQB at its first meeting occurring at least 45 days after DEP mails its report to Funk.

If the EQB decides not to proceed with a proposed rule based on the petition, a subsequent challenge to that decision might present an intriguing vehicle for Funk to test the limits of Act I, Section 27 of the Pennsylvania Constitution (commonly referred to as the Environmental Rights Amendment) following a recent landmark Pennsylvania Supreme Court decision in Robinson Township, et al. v. Commonwealth, No. 63 MAP 2012 (Op. issued Dec. 19, 2013).  In Robinson, a majority of the Court held unconstitutional several challenged provisions of Act 13, a statute amending the Pennsylvania Oil and Gas Act, with a plurality of the Court finding that the relevant provisions violated the Environmental Rights Amendment.

The Environmental Rights Amendment states:

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.

The plurality in Robinson found that this constitutional provision “requires each branch of government to consider in advance of proceeding the environmental effect of any proposed action on the constitutionally protected features” and “establishes the public trust doctrine with respect to these natural resources,” designating the Commonwealth as the trustee and “all the people” of Pennsylvania, including generations yet to come, as the named beneficiaries.  In a challenge to any decision by the EQB not to proceed with a proposed rule based on her petition for rulemaking, which specifically invoked the public trust doctrine codified in Article I, Section 27, Funk would likely argue that the Environmental Rights Amendment requires the Commonwealth to regulate fossil fuel carbon dioxide emissions after considering the environmental effect of not doing so.  In light of recent federal regulatory initiatives on climate change, however, coupled with the fact that fossil fuel carbon dioxide emissions in Pennsylvania comprise only a small fraction of the global carbon dioxide emissions contributing to climate change, such an argument could face a steep uphill battle.