The Commonwealth Court Tuesday ruled against efforts by 19-year old Ashley Funk and other  minor children to force Pennsylvania to adopt limits on climate-changing greenhouse gas emissions.

The Court ruling said the Governor and the Department of Environmental Protection does not have “a mandatory duty to conduct the requested studies, promulgate or implement the requested regulation or issue the requested executive orders” to set greenhouse gas limits.

The Court rejected the argument the Environmental Rights Amendment to the state constitution imposes a duty on the Governor and DEP to adopt the proposed limits.

(Photo: Plaintiff Kaia Elinich Our Children’s Trust Attorney Kenneth Kristl and Ashley Funk.)

The case revolves around an Environmental Quality Board decision in August of 2014 to turn down a rulemaking petition of Ashley Funk, a then 9-year old student from Mount Pleasant, Westmoreland County, asking the Board to adopt a state regulations requiring a 6 percent reduction in baseline carbon dioxide emissions in Pennsylvania by 2050.

While not strictly an appeal of that decision, the case was brought by Funk and other petitioners to require the Commonwealth to develop a comprehensive plan to achieve the necessary reductions in carbon dioxide emissions to protect Pennsylvania’s natural resources and public health.

The ruling agreed with arguments by the Governor and DEP existing state laws do not compel the agencies to adopt carbon dioxide emission limits to combat climate change in the manner asked for by Funk and the other petitioners in the case.

The Court said, “Petitioners point to no legislative enactments or regulatory provisions, and we have found none, that mandate Respondents to do any of the actions sought in the writ. Under the current scheme, 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 Court did agree with the petitioners that the Court had jurisdiction over the issues being raised and the petitioners, primarily minor children, had standing to bring the appeal.

On the standing issue, the Court noted one of the petitioners-- 10--year old Lilian McIntyre from Philadelphia-- alleged potential harm to herself and others if the Commonwealth did not act, and said, “...we see no reason to conclude that Ms. McIntyre’s interest is less substantial than the interests of those in Robinson Township or Friends of the Earth solely because she is alleging harm caused by Respondents’ failure to fulfill an allegedly mandatory duty instead of harm caused by an affirmative act.”

A copy of the Court ruling is available online.

Background On Petition

Funk submitted earlier rulemaking petitions to the EQB in May 2012,  July 2012 and October 2012 which were returned to the petitioner in November 2012 as not meeting the guidelines for rulemaking petitions to be brought before the Board.

In December 2012, Funk and the petitioners appealed the return of the petition to Commonwealth Court and the Environmental Hearing Board.

In July 2013 Commonwealth Court sided with DEP and the EQB and rejected Funk’s appeal without prejudice saying it did not have jurisdiction in the issue because the Environmental Hearing Board had not acted.

On October 24, 2013 the Environmental Hearing Board approved a motion by Funk to dismiss the appeal as a result of an action by DEP determining Funk’s October petition to be complete and would be submitted to the Environmental Quality Board for consideration at the November meeting.

Ashley Funk has been active on other environmental issues. In 2012 she was the winner of the Sue Wiseman Scholarship from Keep PA Beautiful for her efforts to clean up litter and illegal dumps in and around Mount Pleasant Borough, Westmoreland County.

Background On Climate-Changing Emissions

Ashley Funk’s rulemaking petition to the EQB asked for a 6 percent reduction in carbon dioxide emissions by 2050.

In point of fact, Pennsylvania has seen a 20 percent reduction in carbon emissions between 2007 and 2014-- 27 million tons-- due to the increased use of natural gas for electric power generation displacing coal.

Pennsylvania is on track to reduce to see even further reductions as a result of switching from coal to natural gas caused by market forces.

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8/1/2016