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Funk v. Commonwealth, Department of Environmental Protection

Commonwealth Court of Pennsylvania

July 3, 2013

Ashley Funk, Petitioner
v.
Commonwealth of Pennsylvania, Department of Environmental Protection, Respondent

Argued: May 16, 2013

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge HONORABLE BONNIE BRIGANCE LEADBETTER, Judge HONORABLE JAMES GARDNER COLINS, Senior Judge

OPINION

JAMES GARDNER COLINS, Senior Judge

This matter is an action filed by Ashley Funk (Funk) in this Court's original jurisdiction seeking to require the Department of Environmental Protection (DEP) to submit her petition for rulemaking with respect to fossil fuel carbon dioxide emissions to the Environmental Quality Board (EQB). Before the Court are DEP's preliminary objections asserting that Funk's Petition for Review is barred by the doctrine of exhaustion of administrative remedies. For the reasons set forth below, we sustain DEP's preliminary objections.

The EQB is the administrative agency responsible for formulating and promulgating Pennsylvania's environmental regulations. Act of December 3, 1970, P.L. 834, No. 275, § 20, as amended, 71 P.S. 510-20; Tire Jockey Service, § [1] Inc. v. Department of Environmental Protection, 591 Pa. 73, 106, 915 A.2d 1165, 1185 (2007). Private citizens may request that the EQB issue regulations by filing a petition for rulemaking with DEP. Section 20(h) of the Act of December 3, 1970, 71 P.S. § 510-20(h); 25 Pa. Code §§ 23.1-23.8. Such petitions must contain all of the following:

(1) The petitioner's name, address and telephone number.
(2) A description of the action requested in the petition and one of the following:
(i) Suggested regulatory language if the petition requests that the EQB adopt or amend regulations.
(ii) A specific citation to the regulations to be repealed if the petition requests that the EQB repeal existing regulations.
(3) The reason the petitioner is requesting this action from the EQB, including factual and legal contentions as well as supporting documentation which establish the petitioner's justification for the requested action by the EQB.
(4) The types of persons, businesses and organizations likely to be impacted by this proposal.

25 Pa. Code § 23.1(a). DEP examines the petition for rulemaking before it is submitted to the EQB to determine whether it satisfies three requirements: 1) that it contains the information required by 25 Pa. Code §23.1(a); 2) that it requests an action that can be taken by the EQB; and 3) that the requested action does not conflict with federal law. 25 Pa. Code § 23.2. If the petition for rulemaking fails to satisfy any of these requirements, DEP is to notify the petitioner that the petition is not appropriate for submission to the EQB, stating the reasons for that determination. 25 Pa. Code § 23.3.

On October 2, 2012, Funk filed a petition for rulemaking with DEP requesting that the EQB promulgate regulations requiring reduction of fossil fuel carbon dioxide emissions by 6% per year to achieve an atmospheric concentration of 350 parts per million or less of carbon dioxide by 2100. (Petition for Review ¶¶11, 18; Petition for Rulemaking at 1, 3-4 & App.1.) Funk's petition for rulemaking also requested that this regulation require annual progress reports on statewide greenhouse gas emissions, including an inventory and accounting of those emissions. (Petition for Review ¶18; Petition for Rulemaking at 3-4 & App.1.)

On November 20, 2012, DEP mailed Funk a letter, dated November 16, 2012, notifying her that it examined her petition for rulemaking and determined that it failed to meet the requirements for submission to the EQB. (Petition for Review ¶22; November 16, 2012 DEP Letter.) DEP stated three grounds for this determination. First, DEP asserted that the petition requests an action that cannot be taken by the EQB because Section 4.2(c) of the Air Pollution Control Act[2]prohibits the EQB from adopting any "ambient air quality standard for a specific pollutant that is more stringent than an air quality standard adopted by U.S. Environmental Protection Agency (EPA), " and EPA has not established an ambient air quality standard for carbon dioxide. (Petition for Review ¶¶22, 23; November 16, 2012 DEP Letter at 2.) Second, DEP asserted that the petition requests an action that cannot be taken by the EQB because its greenhouse gas emission inventory and reporting provisions are contrary to the inventory and reporting requirements of the Pennsylvania Climate Change Act.[3] (Petition for Review ΒΆΒΆ22, 24; November 16, 2012 DEP Letter at 2-3.) ...


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