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Scarnati v. Commonwealth,, Department of Environmental Protection

Commonwealth Court of Pennsylvania

November 12, 2019

Senator Joseph B. Scarnati and Senator Gene Yaw, Petitioners
The Commonwealth of Pennsylvania, Department of Environmental Protection and The Pennsylvania Environmental Quality Board, Respondents

          Argued: September 9, 2019




         Pennsylvania State Senators Joseph B. Scarnati and Gene Yaw, (collectively, Senators) filed a petition for review in the nature of mandamus (Petition) in our original jurisdiction, seeking to compel the Environmental Quality Board (EQB) to promulgate proposed regulations under Section 6 of Act 40, Section 1920-A(j) of The Administrative Code of 1929, 71 P.S. §510-20(j) (Act 40).[1] Senators also sued the Department of Environmental Protection (DEP). Before us are Senators' application for peremptory judgment and the preliminary objections jointly filed by the EQB and DEP (collectively, Commonwealth Respondents), challenging Senators' standing, and arguing that the Petition fails to state a claim against DEP, and that it fails to state a claim in mandamus. Because Senators lack standing to pursue mandamus relief, we dismiss their petition, and we deny their application for peremptory judgment.

         I. Background

         Act 40 tasked the EQB with regulating water quality criteria for manganese. Specifically, it states:

The [EQB] shall promulgate regulations under the "Clean Streams Law," [(CSL)[2] or other laws of this Commonwealth that require that the water quality criteria for manganese established under 25 Pa. Code Ch. 93 (relating to water quality standards) shall be met, consistent with the exception in 25 Pa. Code §96.3(d) (relating to water quality protection requirements). Within ninety days of [October 30, 2017], the [EQB] shall promulgate proposed regulations.

71 P.S. §510-20(j) (emphasis added). The EQB did not meet the deadline. But, two days before the deadline, on January 27, 2018, DEP initiated an advance notice of proposed rulemaking to gather information related to the task, 48 Pa. B. 605 (Notice). To date, the EQB has not promulgated proposed regulations.[3]

         A. Parties

         Senators are duly-elected members of the Pennsylvania General Assembly who claim legislative standing. Senator Scarnati represents the 25th Senatorial District and serves as President Pro Tempore of the Senate. In that capacity, as the sole constitutional officer, Senator Scarnati has power and authority over legislative internal affairs, including the rules of the Senate.

         Senator Yaw represents the 23rd Senatorial District, and he is the Republican Chairman of the Senate Environmental Resources and Energy Committee, which has limited oversight of DEP. Senator Yaw is also an appointed member of the EQB.

         Commonwealth Respondents are agencies in the executive branch that exercise regulatory and enforcement authority over environmental issues as delegated by the legislature. The EQB is a rulemaking body entrusted with decisions regarding Pennsylvania's natural resources. The 20-member EQB consists of the Secretary of DEP as Chair, secretaries of other agencies and commissions, five members of the Citizens Advisory Council, and four members of the General Assembly, appointed by leaders of that body. Its duties include developing a master environmental plan for the Commonwealth, adopting and promulgating rules and regulations necessary to effectuate environmental change, and advising DEP on policy matters. DEP is a Commonwealth agency tasked with implementing and enforcing environmental laws, including regulations promulgated by the EQB.

         B. Procedural History

         On March 29, 2019, approximately 14 months after the date set forth in Act 40, Senators filed their Petition seeking mandamus relief, invoking this Court's original jurisdiction. Senators subsequently verified their Petition in April.

         Prior to the due date for a response to the Petition, on April 23, 2019, Senators filed an application for relief seeking peremptory judgment pursuant to Pa. R.C.P. No. 1098. Commonwealth Respondents filed a timely response in which they explained the intertwined nature of DEP's and the EQB's role in promulgating regulations that comport with legal requirements, the existing regulatory framework and environmental policy. Both parties filed briefs arguing their respective positions on the application.

         With their response to the application for peremptory judgment, DEP and the EQB filed joint, unverified preliminary objections to the Petition. Although the preliminary objections included a notice to plead, Senators did not amend their Petition or otherwise respond to the preliminary objections. Both parties timely filed briefs in support of their respective positions on the preliminary objections.

         C. ...

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