Shirley v. Pa. Legis. Reference Bureau

318 A.3d 832

Jessica SHIRLEY, Interim Acting Secretary of the Department of Environmental Protection and Interim Acting Chairperson of the Environmental Quality Board

v.PENNSYLVANIA LEGISLATIVE REFERENCE BUREAU, Vincent C. Deliberato, Jr., Director of The Legislative Reference Bureau, and Amy J. Mendelsohn, Director of The Pennsylvania Code and Bulletin

Appeal of: Citizens for Pennsylvania’s Future, Sierra Club, and Clean Air Council, Possible Intervenors

Jessica Shirley, Interim Acting Secretary of the Department of Environmental Protection and Interim Acting Chairperson of the Environmental Quality Board

v.Pennsylvania Legislative Reference Bureau, Vincent C. Deliberato, Jr., Director of the Legislative Reference Bureau, and Amy J. Mendelsohn, Director of The Pennsylvania Code and Bulletin

Appeal of: Citizens for Pennsylvania’s Future, Sierra Club, and Clean Air Council, Possible Intervenors

No. 85 MAP 2022

No. 87 MAP 2022

Supreme Court of Pennsylvania.

Argued: May 24, 2023

Decided: July 18, 2024

Appeal from the Orders of the Commonwealth Court at No. 41 MD 2022 dated June 28, 2022 (No. 85 MAP 2022) and July 8, 2022 (No. 87 MAP 2022). Michael H. Wojcik, Judge

Charles Owen Beckley II, Esq., Thomas Sanford Beckley, Esq., Beckley & Madden, LLC, for Amici Curiae Industrial Energy Consumers of Pennsylvania, Pennsylvania Chamber of Business and Industry, Pennsylvania Manufacturers’ Association, National Federation of Independent Business, Pennsylvania Energy Consumer Alliance.

C. Baird Brown, Esq., eco(n)law LLC, for Amicus Curiae Keystone Energy Efficiency Alliance, et al.

Stephen G. Harvey, Esq., Steve Harvey Law LLC, Eileen Kelly Conway, Esq., Michael E. Gehring, Esq., for Amicus Curiae Pennsylvania Scientists.

John C. Dernbach, Esq., for Amicus Curiae Widener University Environmental Law and Sustainability Center.

Robert Bruce McKinstry Jr., Esq., Amicus Curiae.

Jared Dimock Bayer, Esq., Amorie Ivette Hummel, Esq., James F. Van Orden, Esq., Cozen O’Connor, for Possible Intervenors Constellation Energy Corporation, Constellation Energy Generation LLC.

Emma Hope Bast, Esq., Angela Mae Kilbert, Esq., PennFuture, Jessica Rose O’Neill, Esq., Citizens for Pennsylvania’s Future, for Appellants Citizens for Pennsylvania’s Future, Sierra Club.

Alexander George Bomstein, Esq., Clean Air Council, for Appellant Clear Air Council.

Mark Andrew Bogush, Esq., Andrew Butash, Esq., Legislative Reference Bureau, Peter William Klein, for Appellees Pennsylvania Legislative Reference Bureau, Vincent C. DeLiberato, Jr., Amy J. Mendelsohn.

John Chesley Burruss, Esq., Travis Wood Watson, Esq., Ballard Spahr LLP, for Appellee Richard Negrin.

Sean Christopher Campbell, Esq., Erin Renee Kawa, Esq., James John Kutz, Esq., Post & Schell, P.C., Rodney A. Corey, Esq., Pennsylvania House of Representatives Republican Caucus, James Guthrie Mann, Esq., Pennsylvania House of Representatives, for Appellees Bryan D. Cutler, Martin T. Causer.

Thomas Joseph Gallagher IV, Esq., Thomas W. Hazlett, Esq., Ballard Spahr, LLP, for Appellees Patrick J. McDonnell, Richard Negrin.

Brian Nolan Kearney, Esq., David Pittinsky, Esq., Matthew Adam White, Esq., Ballard Spahr, LLP, for Appellees Patrick J. McDonnell, Secretary of the Department of Environmental Protection, Patrick J. McDonnell, Richard Negrin.

Austin David Hughey, Esq., McNees Wallace & Nurick, for Appellees Jake Corman, Kim Ward, Pat Browne.

Kandice Kerwin Hull, Esq., Brigid Landy Khuri, Esq., Errin Todd McCaulley Jr., Esq., J. Andrew Crompton, Esq., McNees Wallace & Nurick LLC, for Appellees Jake Corman, Kim Ward, Gene Yaw, Pat Browne.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

JUSTICE DOUGHERTY

The Regional Greenhouse Gas Initiative (RGGI) is a cooperative effort among elev- en eastern states of the United States to reduce carbon dioxide (CO2) emissions by electric power plants.¹ The Pennsylvania Department of Environmental Protection (DEP) developed a rulemaking package (RGGI Regulation) to effectuate Pennsylvania’s membership in RGGI. The RGGI Regulation sparked substantial, ongoing litigation. Presently before us are two direct appeals from the Commonwealth Court. Specifically, three nonprofit environmental corporations, Citizens for Pennsylvania’s Future, Clean Air Council, and Sierra Club (Nonprofits), appeal the denial of their application to intervene in this litigation. Nonprofits also appeal from the grant of a preliminary injunction of the RGGI Regulation. As explained below, we reverse the denial of intervention, and we dismiss as moot the appeal from the preliminary injunction.

I. Background

Broadly speaking, RGGI applies to fossil-fuel-fired electric power plants located in RGGI states that have a capacity of 25 megawatts or greater. Under RGGI, regulated power plants within RGGI states must buy "allowances" in order to emit CO2. An allowance represents a limited authorization issued by a participating state to emit one short ton of CO2 from a regulated source. Regulated power plants purchase allowances at quarterly auctions or on the secondary market. Proceeds from the auction purchases go to the RGGI states. A regulated plant can use allowances issued by any RGGI state to demonstrate compliance with RGGI in any state. Together, the RGGI states have established a regional cap on CO2 emissions, which sets an overall limit on the total emissions from regulated power plants within the RGGI states. The regional emissions cap amount declines over time so that permissible CO2 emissions decrease in a planned and predictable way. For example, in 2016, the regional cap was 86,506,875 CO2 allowances; in 2017, the cap decreased to 84,344,203 allowances; and in 2018, it was reduced to 82,235,598 allowances. To join RGGI, a state must enact a CO2 Budget Trading Program based on RGGI’s model rule.²

In 2019, former Governor of Pennsylvania Tom Wolf issued an executive order directing DEP to develop a rulemaking package to join RGGI. Pursuant to the Governor’s order, DEP developed the RGGI Regulation, which was adopted by the Environmental Quality Board (EQB), and then approved by the Independent Regulatory Review Commission. The Pennsylvania State Senate Environmental Resources and Energy Committee reported out of committee a concurrent resolution disapproving the RGGI Regulation, and the concurrent resolution was subsequently adopted by the full Senate. Thereafter, the Senate concurrent resolution was reported from the Pennsylvania State House Environmental Resources and Energy Committee to the full House chamber. DEP twice requested the Pennsylvania Legislative Reference Bureau (LRB) to publish the RGGI Regulation in the Pennsylvania Bulletin. See 45 Pa.C.S. § 724(a) (requiring preliminary publication of regulations in Pennsylvania Bulletin). LRB, however, denied the requests. The full House adopted the concurrent resolution disapproving the RGGI Regulation, but on January 10, 2022, Governor Wolf vetoed it.

On February 8, 2022, then-Secretary of DEP and Chairman of EQB, Patrick McDonnell,³ filed a petition for review in the Commonwealth Court’s original jurisdiction. The named respondents were LRB; Vincent C. DeLiberato, Jr., Director of LRB; and Amy Mendelsohn, Director of the Pennsylvania Code and Bulletin (LRB Respondents). The petition claimed the RGGI Regulation should be deemed approved by the General Assembly because the House did not adopt the concurrent resolution disapproving the RGGI Regulation within the deadlines set forth in Section 7(d) of the Regulatory Review Act (RRA).⁴ Accordingly, the petition sought a writ of mandamus compelling LRB to publish the RGGI Regulation in the Pennsylvania Bulletin. The petition also sought a declaratory judgment that LRB’s prior re- fusai to publish the RGGI Regulation was unlawful, and the RGGI Regulation had been deemed approved by the General Assembly as a matter of law. In addition to its petition for review, DEP filed an application for expedited special and summary relief.

On February 24, 2022, three members of the Pennsylvania House of Representatives — then-Speaker Bryan Cutler, then-Majority Leader Kerry Benninghoff, and then-Chairman of the House Environmental Resources and Energy Committee Daryl Metcalfe (Representatives) — filed an application for leave to intervene in DEP’s lawsuit. Attached to their intervention application were preliminary objections and an answer in opposition to DEP’s application for relief.

The next day, four members of the Pennsylvania Senate — then-President Pro Tempore Jake Corman, then-Senate Majority Leader Kim Ward, Senate Environmental Resources and Energy Committee Chair Gene Yaw, and then-Senate Appropriations Committee Chair Pat Browne (Senators) — also filed an application for leave to intervene. Attached to their intervention application was an answer with new matter and five counterclaims: (1) DEP violated Article II, Section 1 and Article III, Section 9 of the Pennsylvania Constitution,⁵ as well as Section 7(d) of the RRA, by sending the RGGI Regulation to LRB for publication before it was approved or deemed approved; (2) the RGGI Regulation exceeds DEP’s authority under the Air Pollution Control Act (APCA), 85 P.S. §§ 4001-4015; (3) the RGGI Regulation violates the General Assembly’s exclusive authority to enter into interstate compacts; (4) the RGGI Regulation violates the General Assembly’s exclusive authority to impose taxes; and (5) the RGGI Regulation is void ab initio because DEP did not follow the public notice and comment procedures required by the Commonwealth Documents Law, 45 P.S. §§ 1201-1208, and the APCA. Also attached to Senators’ intervention application was an answer to DEP’s application for relief. Senators requested that the court accept these attached pleadings if they were granted permission to intervene. See Senators’ Application for Leave to Intervene, 2/25/22 at ¶81.

DEP filed written consents to intervention by Senators and Representatives. Accordingly,...