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
BEFORE: HONORABLE ANNE E. COVEY, Judge, HONORABLE MICHAEL H.
WOJCIK, Judge, HONORABLE ROBERT SIMPSON, Senior Judge
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). 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.
tasked the EQB with regulating water quality criteria for
manganese. Specifically, it states:
The [EQB] shall promulgate regulations under the "Clean
Streams Law," [(CSL) 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
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.
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.
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.
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.
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
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.
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.