Shirley v. Pennsylvania Legislative Reference Bureau

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The Pennsylvania Supreme Court reversed the denial of nonprofit organizations’ application to intervene in litigation challenging the Pennsylvania Department of Environmental Protection (PADEP) regulation implementing Pennsylvania’s participation in the Regional Greenhouse Gas Initiative (RGGI), a multistate cap-and-trade program for carbon dioxide emissions from power plants. The organizations sought to defend the RGGI regulation under the Pennsylvania Constitution’s Environmental Rights Amendment (ERA). The Supreme Court first concluded that it had jurisdiction over the organizations’ appeal and that the appeal was not moot. On the merits, the Supreme Court agreed with the Commonwealth Court that the nonprofit organizations established “a substantial, direct and immediate interest in the outcome of the litigation” entitling them to intervention based on alleged harms to the interests of their members that would be addressed by the RGGI regulation. Unlike the Commonwealth Court, however, the Supreme Court further concluded that PADEP did not adequately represent the organizations’ interests. The Supreme Court found that the Commonwealth Court’s analysis of the adequate representation issue unreasonably omitted the fact that PADEP “never once invoked the ERA in support of the RGGI Regulation.” The Supreme Court found that, “whatever its ultimate merit,” the ERA defense “presents a salient and nonfrivolous argument regarding the central question in this litigation of whether the RGGI Regulation is an unconstitutional tax.” The Supreme Court dismissed the organizations’ separate appeal of the Commonwealth Court’s granting of a preliminary injunction of the RGGI regulation. The Supreme Court said the Commonwealth Court’s subsequent permanent injunction rendered the appeal moot.