State weighs petition seeking new emissions rules

A 20-year-old college student from Mount Pleasant has been trying for two years to push Pennsylvania to write rules to limit emissions of the heat-trapping gases warming the planet.

She will find out next week if the state will act on her persistent plea.

Renewing an effort she started in 2012, Ashley Funk from Westmoreland County petitioned the state Environmental Quality Board last September to adopt regulations to reduce the carbon dioxide emitted from burning fossil fuels in Pennsylvania by 6 percent each year through 2050.

In the intervening months, a state supreme court decision in a separate case gave new weight to the argument at the heart of her proposal that the state has an obligation to conserve Pennsylvania’s public natural resources.

Generally, the environmental rulemaking board reviews proposals from the professional regulators at the Department of Environmental Protection, but it also hears petitions to change or create environmental regulations from the public, including the petitioners with the feel-good name Ashley Funk and Kids vs. Global Warming.

The 20-member board — made up of the heads of 11 state agencies, five members of a citizens advisory council and four members of the state Senate and House — is scheduled to consider the petition at a meeting on Aug. 19.

If the board approves the petition, DEP would have to translate climate change goals and policies into stricter permit limits and other actions that would be necessary for the state to meet mandatory emissions reductions.

“It certainly would set a national precedent,” said Ms. Funk’s attorney Kenneth Kristl, the director of the Environmental and Natural Resources Law Clinic at Widener Law School.

DEP recommends that the board deny the petition. Even if Pennsylvania were to eliminate its carbon dioxide emissions entirely, the agency said, it would reduce the global concentration of CO2 in the atmosphere by only a tiny fraction — 0.014 percent — and so would make little difference in establishing the safe concentration of CO2 the petition hopes to achieve.

“Climate change is a global issue that requires a global response,” the agency wrote in an April 15 report recommending the petition be denied.

It reiterated its disapproval in its final recommendation to the board last month: “The department has already established a comprehensive [greenhouse gas] reduction strategy that touches all of the major [greenhouse gas] emitting source categories in Pennsylvania,” it wrote on July 31. “The department is unwilling and unable to recommend to the EQB that it develop a regulatory program, advocated by the petitioner, which will not work.”

In their reply, Ms. Funk’s attorneys wrote that Pennsylvania’s Constitution requires the state to conserve and maintain its natural resources, including the atmosphere, for the benefit of all its citizens, current and future.

That responsibility is imposed by the state’s Environmental Rights Amendment — article 1, section 27 of the constitution — which also declares Pennsylvanians’ right to clean air, pure water, and environmental preservation. It was revived recently by a state supreme court opinion in Robinson Township v. Commonwealth of Pennsylvania that relied on the amendment to justify striking down limits to local zoning control of natural gas operations.

Ms. Funk’s attorneys argue the amendment also requires the state to develop policies that protect its citizens from the disruptions of climate change.

DEP’s response to the petition “reads as if this constitutional guarantee does not exist,” they wrote. They encouraged the rulemaking board to order DEP to write the requested rule.

DEP’s “trumpeting of [its] modest efforts, and its list of excuses for not doing anything more, underscores that it does not wish to undertake the actions necessary to protect present and future generations of Pennsylvanians like Ms. Funk as article 1, section 27 requires it to do,” they wrote.

If the Environmental Quality Board rejects Ms. Funk’s petition, an appeal could help define the state’s obligations under the reinvigorated Environmental Rights Amendment.

Brian Glass, an environmental attorney with the Bryn Mawr firm Warren Glass, said an appeal would be “the perfect case to test the limits of the Environmental Rights Amendment post-Robinson Township, because the petition is seeking to address the most urgent and significant threat to Pennsylvania’s public natural resources of our time.”

But such a challenge would face an uphill battle in the courts, he said, because both the problem of climate change and its solutions are global in scope, as DEP emphasized in its argument, and national efforts to curtail greenhouse gas emissions are underway.

DEP officials have not embraced the U.S. Environmental Protection Agency’s recently proposed carbon pollution standards, which would require the state to reduce CO2 emissions from power plants by 32 percent from 2012 levels by 2030. But such a “comprehensive nationwide approach,” the agency wrote, “if designed correctly, is more effective than the piecemeal state-by-state approach advocated by the petitioner.”

The reductions called for in Ms. Funk’s petition would cut the state’s greenhouse gas emissions by 90 percent from 2013 levels by 2050, DEP said.

Mr. Kristl said his team will have to evaluate its options after the Environmental Quality Board votes on the petition to determine whether to file an appeal.

Ms. Funk’s petition is part of a national effort, he said. People in other states have had to fight, sometimes unsuccessfully, for courts to recognize that the atmosphere is a public trust that states are obligated to protect. In Pennsylvania, that concept is already established.

“What the department seems to be saying is, ‘But we’re doing something,’” he said. “From a constitutional perspective the question is, is ‘something’ enough to satisfy the obligations of the public trustee?”

Laura Legere:

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