The kids don't have a clear right

Court dismisses Pennsylvania youths' climate case




A Pennsylvania court last week dismissed an attempt by a group of young residents to compel the governor and state agencies to develop a comprehensive strategy to limit greenhouse gas emissions, saying the state constitution does not require the agencies to act absent legislative direction.

The Commonwealth Court’s decision to toss out the case on July 26 was a blow to proponents of a plain reading of the state’s environmental rights amendment, but it was a relief to regulators who said it clarified expectations about how to satisfy the environmental demands laid out in the state constitution.

The petitioners — six children and a college student from Mount Pleasant — said Gov. Tom Wolf and state agencies like the Department of Environmental Protection and the Public Utility Commission were infringing on their rights by not doing enough to limit greenhouse gas emissions and the damaging effects of climate change.

But a three-judge panel of the court, in a decision written by Judge Renée Cohn Jubelirer, said that although the children had standing to bring the challenge they “do not have a clear right" to require the government to take steps beyond those mandated in Pennsylvania’s air pollution and climate change laws.

Under the current legislative scheme, Judge Cohn Jubelirer wrote, “deciding whether to conduct particular studies, promulgate regulations or issue executive orders detailing the process by which environmental decisions are made, and to prepare and implement comprehensive regulations addressing climate change are either discretionary acts of government officials or is a task for the General Assembly.”

The petitioners filed the case in September 2015 following years of attempts by the lead petitioner, Ashley Funk, to get the court and the state’s environmental rule-making board to compel the government to take stronger action to limit emissions of climate changing gases like carbon dioxide.

Calling themselves “the youngest living generation” of Pennsylvania citizens for whom the Commonwealth has a duty to conserve and maintain the state’s public natural resources under Pennsylvania’s environmental rights amendment, they said the governor and state agencies have failed to scrutinize the scope of their constitutional obligations to respond to climate change. The agencies have also failed to craft regulations or executive orders to curb greenhouse gas emissions adequately to set future generations on a path “to protect a livable world,” they said.

Rather than suggesting a particular regulatory scheme, the petitioners asked the court to order the state agencies to determine how to regulate greenhouse gas emissions to protect the public’s environmental rights in the face of climate change and then take the steps necessary to fulfill those duties.

The state agencies filed preliminary objections challenging the petitioners’ right to require those actions and the court’s jurisdiction to hear the case.

The court found that the petitioners had standing because at least one of them, a fourth-grader from Philadelphia named Lilian McIntyre had a “substantial, direct and immediate” stake in the outcome of the case. The children alleged heat, storms, ecosystem changes and rising seas related to climate change are now, and will continue, causing them harm.

“The interests asserted here — the right to enjoy public natural resources and to not be harmed by the effects of environmental degradation now and in the future — are among the interests protected by the [environmental rights amendment],” Judge Cohn Jubelirer wrote.

But she found that the petitioners read the demands of the environmental rights amendment too broadly and she reiterated, based on past court decisions, that the amendment “cannot operate on its own” to expand the powers of government agencies.

She also rejected the petitioners’ request that the court declare that the environmental rights amendment requires protection of the atmosphere with safe levels of greenhouse gases, finding that such a declaration would amount to an advisory opinion and have “no practical effect” on the parties.

Department of Environmental Protection spokesman Neil Shader said in an email that the agency “is pleased with the ruling and appreciates the clarification of the [environmental rights amendment] so that we ensure that we can exercise technical and administrative discretion.”

The children’s attorney Kenneth Kristl, the director of the environmental law clinic at Widener University’s Delaware Law School, said they are disappointed in the decision and are exploring an appeal.

He said the holding “creates some more confusion because it is inconsistent with what the Supreme Court said in the Robinson Township decision.” He was referring to a landmark 2013 decision in which a plurality of justices on the state’s highest court generally dismissed the long-held idea that application of the state’s environmental rights amendment depends upon legislative action.

The plurality’s reasoning in that Supreme Court case was not binding because it did not command a majority.

The state of the law related to the state’s environmental rights amendment “is in flux right now,” said John Dernbach, a Widener Law Commonwealth professor and an authority on the amendment.

With the decision in Funk v. Wolf, the Commonwealth Court is effectively saying that a different standard applies to the environmental rights amendment than to the other rights described in article 1 of the state constitution, he said.

“You don’t need legislation to have freedom of speech. You don’t need legislation to have freedom of religion,” he said. “But here, what the court is saying, based on its own prior cases, is that you need legislation to protect the public’s right to conserve and maintain public natural resources.”

If the court is correct, he added, “for all practical purposes it is not a constitutional right.”

Laura Legere: llegere@post-gazette.com.

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