On July 18, 2024, the Pennsylvania Supreme Court decided that environmental groups were entitled to intervene in a case challenging the lawfulness of a greenhouse gas regulation because the state’s attorneys failed to raise the argument that the regulation protected environmental rights secured by Article I, Section 27 of the Pennsylvania Constitution.
Though ostensibly procedural, the decision in Shirley v. Pennsylvania Legislative Reference Bureau [subscription required] breaks new ground about the role of state and local agencies and their lawyers in the interpretation and application of constitutional environmental rights. The decision also has other significant implications for climate litigation.
In Shirley,individual Republican legislators and various entities associated with two coal-fired power plants challenged a Department of Environmental Protection (DEP) greenhouse gas control regulation. The regulation would enable the state to participate in the Regional Greenhouse Gas Initiative (RGGI).
The Commonwealth Court denied motions by several environmental groups and Constellation Energy to intervene in support of the state regulation. The court found that the environmental groups had sufficiently demonstrated a “legally enforceable interest” (i.e., standing) in the litigation because of present and future climate injuries suffered by their members. The environmental groups argued that the regulation protected their members’ rights under the Environmental Rights Amendment. Nevertheless, the court denied the groups’ motion because it concluded that the state adequately represented that interest, based solely on the state’s interest in supporting the RGGI regulation.
The Commonwealth Court then entered a preliminary injunction enjoining the RGGI regulation, holding that the regulation’s auction of emissions allowances was a tax not legislatively authorized under the Pennsylvania Air Pollution Control Act. While appeals from the preliminary injunction and the denial of the environmental groups’ motion to intervene were pending before the state Supreme Court, the Commonwealth Court entered an order voiding the regulation on identical grounds.
The environmental groups, as well as many amici (disclosure: including the authors), argued to both courts that the Environmental Rights Amendment is central to the defense of the greenhouse gas regulation:
- Pennsylvania’s Environmental Rights Amendment recognizes the people’s right to “clean air” and the preservation of certain environmental values. The state constitution also recognizes that the state has a public trust duty to “conserve and maintain” public natural resources. Thus, the state has a duty to limit greenhouse gas emissions where authorized by statute.
- Under a prior line of cases, it must be presumed that the Pennsylvania General Assembly acted consistent with its duties under the amendment when it adopted the Air Pollution Control Act. Thus, the broad grants of rulemaking authority provided in the Act should be read as they were written.
- Each ton of carbon dioxide emitted causes permanent damage to the atmosphere and other public natural resources. Thus, the RGGI auction proceeds are payments for use of public trust resources. Under another line of cases, these auction proceeds must be used to “conserve and maintain” public natural resources and cannot be used for general governmental purposes. The RGGI auction therefore is not a tax.
The Court’s opinion in Shirley agreed with the Commonwealth Court that the standard for a “legally enforceable interest” was met. It did not agree that the state adequately represented that interest.
Focusing on the environmental groups’ assertion that the auction constituted a sale of public natural resources under the amendment rather than a tax, the Court held that the state’s failure even to acknowledge the Environmental Rights Amendment meant that it did not adequately represent the interests of the environmental groups:
[W]hatever its ultimate merit, this defense presents a salient and nonfrivolous argument regarding the central question in this litigation of whether the RGGI Regulation is an unconstitutional tax. The argument could benefit Nonprofits and DEP alike. Yet, DEP has never raised it….[U]nder the specific circumstances present here, involving the omission of an obvious, possibly meritorious, and potentially beneficial argument regarding the pivotal issue in the case, we hold adequate representation of Nonprofits by DEP…is lacking.
The Shirley decision has several implications. First, plaintiffs and others who properly allege injuries based on adverse effects from greenhouse gas emissions and climate change will almost certainly be held to have standing. Second, although the Court was careful not to decide the ultimate issue, it appears those seeking to overturn the regulation will face an uphill battle.
Third, the decision may have implications for professional responsibility under Rule 1.1 of the Model Rules of Professional Conduct because the cases cited by the court on adequacy of legal representation used terms such as “incompetent.” The American Bar Association House of Delegates adopted a resolution in 2019 urging lawyers to counsel their clients on the risks and opportunities of climate change, and a recent article argues that lawyers need to be “climate competent.”
Finally, this case could have implications in other states with constitutional environmental provisions, particularly Hawai’i, Montana, and New York. Counsel for these states (as well as municipalities, authorities and other entities with constitutional environmental duties) would be prudent to consider how these amendments could be used to support (and oppose) specific government actions. State and local governments need to protect constitutional environmental rights as a matter of course, and not simply when required by courts.
