HARRISBURG – In reversing an earlier ruling from the Commonwealth Court, the Supreme Court of Pennsylvania is permitting environmental nonprofit groups to intervene in litigation over the state’s membership in the Regional Greenhouse Gas Initiative (RGGI), a program to reduce carbon emissions and one tenet of which would place a tax on coal and gas-fired power plants.
In a 3-2 decision issued on July 18, state Supreme Court Justices Kevin M. Dougherty, Debra Todd, Christine Donohue and David N. Wecht approved the intervention of the Citizens for Pennsylvania’s Future, Sierra Club and Clean Air Council in the Department of Environmental Protection’s suit versus the Pennsylvania Legislative Reference Bureau.
Justices Sallie Updyke Mundy and P. Kevin Brobson dissented from the majority on the point that the Commonwealth Court erred in denying the intervention, while Justice Daniel McCaffery did not participate in the disposition of the case.
Pennsylvania entered the RGGI under the administration of former Gov. Tom Wolf in 2022, joining 10 other states in the Northeast U.S., including Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island and Vermont.
Legislative opponents of the measure contended that the Wolf Administration overreached in its powers of executive authority by joining the RGGI and attempted to block its being put into effect, before ultimately filing suit.
In July 2022, the Commonwealth Court issued an injunction preventing Pennsylvania from participating in the RGGI, which the state DEP and the Environmental Quality Board appealed to the state Supreme Court.
The Commonwealth Court also prevented Citizens for Pennsylvania’s Future, Sierra Club and Clean Air Council from intervening in the case, which was also appealed to the state Supreme Court.
Dougherty authored the state Supreme Court’s majority opinion.
“Presently, nonprofits established ‘a substantial, direct and immediate interest in the outcome of the litigation’ entitling them to intervention under [Pennsylvania Rule of Civil Procedure] 2327(4). They presented the testimony of individual members regarding alleged harms they are suffering due to CO2 emissions from fossil-fuel-fired power plants. Specifically, Margaret Church testified she is a member of Citizens for Pennsylvania’s Future and the Environmental Defense Fund who has lived in Bethlehem, Pennsylvania for over 50 years. Ms. Church claimed that in the last 25 years, the heat, rain and flooding in her area have all gotten worse, changes she attributed to climate change,” Dougherty said, in part.
“She alleged that as a ‘senior[,]’ the hotter temperatures cause her to worry about dehydration and overheating. Accordingly, she monitors the weather and does not go outside to do yard work if it is too hot. She also monitors the air quality because if it is not good, she experiences breathing difficulties and is unable to do what she wants to do outside. She testified that on poor air quality days, she must stay inside, which leaves her feeling sluggish and depresses her mood. In addition to these personal impacts, Ms. Church expressed concern about the adverse effects of climate change on the lives of her children and grandchildren, especially her young grandson with asthma.”
Another witness, Echo Alford, testified she is a member of the Clean Air Council who lives in Boothwyn, Pennsylvania, two miles from the Marcus Hook Energy Center, a fossil-fuel-fired power plant.
“Alford averred that the plant causes poor air quality, which can exacerbate her asthma and allergies and prevent her from spending time outdoors. She checks the air quality to determine whether it is safe for her to go outside. She also stated the plant produces ‘strange’ smells, which can cause stomach aches, dizziness, lightheadedness and headaches. She noted too that her 14-year-old son likewise suffers from breathing issues, as well as frequent bloody noses. She asserted she is ‘most definitely’ concerned about pollution from the plant, and her concerns are ‘often at the forefront of [her] mind,” Dougherty said.
“Laura Jacko testified she is a member of the Sierra Club who lives in Verona, Pennsylvania. Ms. Jacko recounted that her husband, like many people in their region, suffers greatly from asthma, and his flare-ups often coincide with poor air quality days. She stated that when her husband is ill with asthma, he is unable to be productive at work or to handle household responsibilities. He is also unable to join her and her four-year-old son in outdoor activities. She noted her son was born prematurely, which she believes may have been caused by the region’s poor air quality, and also suffers from weak lungs, which could progress to asthma in the future. She suffers from eco-anxiety related to climate change and has sought care from a therapist to help her regulate her anxiety.”
Dougherty explained that the nonprofits also provided expert testimony concerning the environmental and health impacts of CO2 emissions and the RGGI Regulation.
Dr. Raymond Najjar, a professor of oceanography at Pennsylvania State University, testified that “CO2 emissions, by enhancing the greenhouse effect, are causing the Earth to warm, and Pennsylvania conditions correspond very closely to the global trend of warmer weather.”
“This evidence sufficed to establish the individual members of nonprofits – Church, Alford and Jacko – each have standing. First, their interests in the outcome of the litigation are substantial. The members claim specific harms to their well-being, including hotter and wetter weather, poor air quality, breathing difficulties, forced time inside, exacerbated asthma symptoms, worsened allergies, odd smells, dizziness, lightheadedness, headaches, ill loved ones and eco-anxiety. These specific interests in the outcome of the litigation go beyond the general interest shared by all Pennsylvanians in procuring obedience to the law. At stake for these individuals is not just fidelity to the law but the quality of their lives. Furthermore, their interests in the outcome of this injunction litigation are direct: an injunction deprives them of the RGGI Regulation’s purported environmental and health benefits, and their ongoing injuries persist or worsen,” Dougherty said.
“Finally, nonprofits showed their members’ interests in the outcome of this litigation are immediate. The causal connection between the RGGI Regulation and the benefits to the members is neither remote nor speculative for standing purposes. Dr. Gentile testified implementation of the RGGI Regulation would ‘definitely’ cause improvements in the environment and better health outcomes. Because the benefits of the RGGI Regulation are not purely conjectural, neither are the harms members will experience if these benefits are denied them. As members of nonprofits have evidence-based standing individually, it follows nonprofits have associational standing as representatives of their members. Thus, nonprofits perforce have legally enforceable interests entitling them to intervention under Rule 2327(4).”
The state Supreme Court further decided that the question of the prior injunction was moot, and did not consider it – “since the Commonwealth Court’s Nov. 1, 2023 permanent injunction of the RGGI Regulation superseded the preliminary injunction, rendering any appeal from the preliminary injunction moot,” according to Dougherty.
Supreme Court of Pennsylvania cases 85 MAP 2022 & 87 MAP 2022
Commonwealth Court of Pennsylvania case 41 M.D. 2022
From the Pennsylvania Record: Reach Courts Reporter Nicholas Malfitano at nick.malfitano@therecordinc.com