On July 18, 2024, in Shirley v. Pennsylvania Legislative Reference Bureau, No. 85 MAP 2022, 2024 WL 3450536 (Pa. July 18, 2024), the Pennsylvania Supreme Court reversed the denial of three nonprofit organizations’ application to intervene in the litigation challenging the Pennsylvania Department of Environmental Protection (PADEP) regulation implementing Pennsylvania’s participation in the Regional Greenhouse Gas Initiative (the RGGI Regulation).  After rejecting several arguments regarding the appealability of the order denying intervention, the Court found that the nonprofits’ interest in defending the RGGI Regulation under the Pennsylvania Constitution’s Environmental Rights Amendment (ERA) was not adequately represented by the PADEP and therefore the lower court erred in denying intervention.  Because of this ruling, the three nonprofit organizations (Citizens for Pennsylvania’s Future, Clean Air Council, and the Sierra Club) (Nonprofits) are now able to pursue an appeal of the Commonwealth Court’s final order permanently enjoining the RGGI Regulation from going into effect. 

RGGI represents the first cap-and-invest regional initiative of CO2 emissions from regulated power plants implemented in the United States and has sparked substantial ongoing litigation.  We have previously written about the Commonwealth Court decision which found that the RGGI Regulation amounted to an unconstitutional tax, and thus warranted a permanent injunction.  During litigation before the Commonwealth, the PADEP failed to invoke the ERA in their defense of the regulation.  Prior to the issuance of the injunction, the Nonprofits filed an application to intervene and defend RGGI under the ERA. 

In Pennsylvania a person is permitted to intervene in an action if “the determination of such action may affect any legally enforceable interest of such person whether or not [they] may be bound by a judgment in the action.”  Ziadeh v. Pa. Legis. Ref. Bureau, 41 MD 2022 & 247 MD 2022, slip op. at 10 (Pa. Cmwlth., July 8, 2022) (quoting Pa. R.C.P. 2327(4)).  An application for intervention that satisfies the above requirement may be refused “if the [person] is already adequately represented.” Id. at 11 (quoting Pa. R.C.P. 2329(2)).  While the Commonwealth Court determined the Nonprofits possessed a legally enforceable interest, it denied the Nonprofits' application to intervene finding that their interests were “adequately represented” by the PADEP.  The Nonprofits appealed the denial of intervention.

On appeal, the Supreme Court found that the Commonwealth Court correctly determined the Nonprofits satisfied Rule 2327(4), entitling them to intervention based on alleged harms to the interests of their members that would be addressed by the RGGI Regulation.  Specifically, the Supreme Court referenced the testimony of individual members regarding alleged harms they would suffer due to CO2 emissions from power plants and expert testimony concerning the environmental and health impacts of CO2 emissions and the RGGI Regulation.

However, the Supreme Court found that the Commonwealth Court erred in concluding the PADEP adequately represented the Nonprofits’ interests such that their intervention should be denied under Rule 2329(2).  The Supreme Court found that the Commonwealth Court’s analysis of the adequate representation issue unreasonably omitted the key fact that the PADEP failed to invoke the ERA in support of the RGGI Regulation.  In their appeal, the Nonprofits alleged that the ERA refuted various arguments that the RGGI Regulation intruded on the General Assembly’s exclusive authority to impose taxes and that the ERA “preclude[d] the possibility that the RGGI auction proceeds could somehow be construed as a tax.”  The Supreme Court found that the Nonprofits’ ERA defense “present[ed] a salient and nonfrivolous argument regarding the central question in this litigation of whether the RGGI Regulation is an unconstitutional tax.”

The Supreme Court reversed the Commonwealth Court's decision denying the Nonprofits' application to intervene, allowing them to participate as parties in the ongoing litigation and directly appeal the Commonwealth Court’s final order permanently enjoining the RGGI Regulation.  This case serves as an example of nonprofits’ ability through litigation to have a seat at the table in some of the most important environmental issues and regulations currently being litigated in Pennsylvania.

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