        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ashley Funk; Otis Harrison, a minor,      :
by his guardian Amy Lee; Lilian           :
McIntyre, a minor, by her guardian        :
Jennifer McIntyre; Rekha                  :
Dhillon-Richardson, a minor, by her       :
guardian Jaskiran Dhillon; Austin         :
Fortino, a minor, by his guardian Ruth    :
Fortino; Darius Abrams, a minor, by       :
his guardian Elaine Abrams; Kaia          :
Luna Elinich, a minor, by her guardian    :
Arianne Elinich,                          :
                          Petitioners     :
                                          :
                     v.                   :   No. 467 M.D. 2015
                                          :   Argued: June 6, 2016
Tom Wolf, in his official capacity as     :
Governor of Pennsylvania;                 :
Pennsylvania Department of                :
Environmental Protection; John            :
Quigley, in his official capacity as      :
Secretary of the Pennsylvania             :
Department of Environmental               :
Protection; Pennsylvania Environmental :
Quality Board; John Quigley, in his       :
official capacity as Chairperson of the :
Environmental Quality Board;              :
Pennsylvania Public Utility               :
Commission; Gladys M. Brown, in           :
her official capacity as Chairperson of :
the Public Utility Commission;            :
Pennsylvania Department of                :
Conservation and Natural Resources;       :
Cindy Adams Dunn, in her official         :
capacity as Secretary of the              :
Pennsylvania Department of                :
Conservation and Natural Resources;       :
Pennsylvania Department of                :
Transportation; Leslie S. Richards, in :
her official capacity as Secretary of the :
Pennsylvania Department of                :
Transportation; Pennsylvania                  :
Department of Agriculture; Russell C.         :
Redding, in his official capacity as          :
Secretary of the Department of                :
Agriculture,                                  :
                           Respondents        :


BEFORE:       HONORABLE RENÉE COHN JUBELIRER, Judge
              HONORABLE MICHAEL H. WOJCIK, Judge
              HONORABLE JAMES R. COLINS, Senior Judge


OPINION
BY JUDGE COHN JUBELIRER                            FILED: July 26, 2016


       Before this Court in our original jurisdiction are the Preliminary Objections
(POs) of the Pennsylvania Public Utility Commission (PUC) and Gladys M.
Brown, in her official capacity as Chairperson of the PUC, (PUC Respondents) and
the separately filed POs of Tom Wolf, in his official capacity as Governor of
Pennsylvania, and various Executive Branch Departments and Secretaries acting in
their official capacities (Executive Branch Respondents) to the “Second Amended
Petition for Review Seeking Declaratory and Mandamus Relief” (Petition) of
Ashley Funk, et al. (Petitioners).1 Petitioners seek various forms of declaratory
and mandamus relief with the goal of requiring PUC and Executive Branch
Respondents (together, Respondents) “to develop a comprehensive plan” and to
regulate “Pennsylvania’s emissions of carbon dioxide (‘CO2’) and other
greenhouse gases (‘GHGs’)” in a comprehensive manner that is “consistent

       1
        The Petitioners include: Ashley Funk; Otis Harrison, a minor, by his guardian Amy Lee;
Lilian McIntyre, a minor, by her guardian Jennifer McIntyre; Rekha Dhillon-Richardson, a
minor, by her guardian Jaskiran Dhillon; Austin Fortino, a minor, by his guardian Ruth Fortino;
Darius Abrams, a minor, by his guardian Elaine Abrams; and Kaia Luna Elinich, a minor, by her
guardian Arianne Elinich.
with[,] and in furtherance of[,] the Commonwealth’s duties and obligations under
Article I, Section 27” of the Pennsylvania Constitution. Pa. Const. art. I, § 27.
(Petition ¶ 1.)   Petitioners allege that by not developing and implementing a
comprehensive plan to regulate CO2 and GHGs in light of the present and
projected deleterious effects of global climate change, Respondents have not
fulfilled their constitutional obligations to not infringe upon the rights granted to
the people by the Constitution and have not adequately acted as trustees of the
Commonwealth’s public natural resources, including the atmosphere. (Id.) The
Executive Branch Respondents object to the Petition through 12 POs and the PUC
Respondents filed an additional 7 POs. For the reasons that follow, we sustain the
Respondents’ POs in part and dismiss the Petition.


I.    THE ENVIRONMENTAL RIGHTS AMENDMENT
      The claims asserted in this action relate to the rights granted to citizens of
Pennsylvania by Article I, Section 27 of the Pennsylvania Constitution, commonly
referred to as the “Environmental Rights Amendment” (ERA) and the respective
obligations imposed upon the Commonwealth by the same. The ERA provides:

      The people have a right to clean air, pure water, and to the
      preservation of the natural, scenic, historic and esthetic values of the
      environment.     Pennsylvania’s public natural resources are the
      common property of all the people, including generations yet to come.
      As trustee of these resources, the Commonwealth shall conserve and
      maintain them for the benefit of all the people.


Pa. Const. art. I, § 27. The first sentence of the ERA (first provision) endows the
people of Pennsylvania with the right to the described resources. Cmty. Coll. of
Delaware Cnty. v. Fox, 342 A.2d 468, 473 (Pa. Cmwlth. 1975). The rights to

                                         2
“clean air, pure water, and to the preservation of the natural, scenic, historic and
esthetic values of the environment,” like all rights established in Article I of the
Pennsylvania Constitution, prevent the state from acting in ways that would
infringe upon such rights. Com. by Shapp v. Nat’l Gettysburg Battlefield Tower,
Inc., 311 A.2d 588, 592 (Pa. 1973). The second and third sentences (second
provision) establish “that the Commonwealth is the ‘trustee’ of Pennsylvania’s
‘public natural resources.’” Id. We have said, with regard to the second provision,
that the intent of the ERA is “to place Pennsylvania’s ‘public natural resources’ in
trust and to impose a duty on the Commonwealth, as trustee, to ‘conserve and
maintain them for the benefit of all the people.’” Pa. Envtl. Def. Found. v.
Commonwealth, 108 A.3d 140, 167 (Pa. Cmwlth. 2015) (quoting the ERA)
(emphasis added). A legal challenge asserting the rights established in the ERA
“may proceed upon alternate theories that either the government has infringed
upon citizens’ rights or the government has failed in its trustee obligations, or upon
both theories.”   Id. at 156.     (quoting Robinson Twp., Washington Cnty. v.
Commonwealth, 83 A.3d 901, 950-51 (Pa. 2013) (plurality).
      While expansive in its language, the ERA was not intended to be read in
absolutist terms so as to prohibit development that enhances the economic
opportunities and welfare of the people currently living in Pennsylvania. Payne v.
Kassab, 361 A.2d 263, 273 (Pa. 1976) (hereinafter, “Payne II”); see also Robinson
Twp., 83 A.3d at 958 (“the duties to conserve and maintain [public natural
resources] are tempered by legitimate development tending to improve upon the lot
of Pennsylvania’s citizenry”).     Instead, the ERA places policymakers in the
“constant and difficult” position of “weighing conflicting environmental and social
concerns” and “in arriving at a course of action that will be expedient as well as


                                          3
reflective of the high priority which constitutionally has been placed on the
conservation of our natural, scenic, esthetic and historical resources.” Payne v.
Kassab, 312 A.2d 86, 94 (Pa. Cmwlth. 1973) (hereinafter, “Payne”). To this end,
we recently described the ERA as “a thumb on the scale, giving greater weight to
the environmental concerns in the decision-making process” when “environmental
concerns of development are juxtaposed with economic benefits of development.”
Pa. Envtl. Def. Found., 108 A.3d at 170.
       Judicial review of governmental decisions implicating the ERA “must be
realistic and not merely legalistic.”         Payne, 312 A.2d at 94.           In Payne, we
established a three-fold test to determine whether a government decision complies
with the ERA.

       (1) Was there compliance with all applicable statutes and regulations
       relevant to the protection of the Commonwealth’s public natural
       resources? (2) Does the record demonstrate a reasonable effort to
       reduce the environmental incursion to a minimum? (3) Does the
       environmental harm which will result from the challenged decision or
       action so clearly outweigh the benefits to be derived therefrom that to
       proceed further would be an abuse of discretion?

Id.2

       2
         In Robinson Township, a plurality of the Pennsylvania Supreme Court stated that, in
contrast to conducting a realistic analysis discussed in Payne, “the courts must conduct a
principled analysis of whether the [ERA] has been violated.” Robinson Twp., 83 A.3d at 951
(emphasis added). The plurality also criticized the three-fold test established by this Court in
Payne when it stated:

       [T]he Payne test appears to have become, for the Commonwealth Court, the
       benchmark for Section 27 decisions in lieu of the constitutional text. In its
       subsequent applications, the Commonwealth Court has indicated that the viability
       of constitutional claims premised upon the Environmental Rights Amendment
       was limited by whether the General Assembly had acted and by the General
       Assembly’s policy choices, rather than by the plain language of the amendment.
                                                                               (Continued…)
                                               4
       The Payne test is particularly applicable in situations where a person
challenges a government decision or action. This test is somewhat less satisfying
when, as here, a person alleges that the government failed to affirmatively engage
in an action required by its trusteeship duties under the ERA’s second provision.
When confronted with such allegations, the Supreme Court’s discussion in Payne
II is helpful, where the Court explained:

       There can be no question that the Amendment itself declares and
       creates a public trust of public natural resources for the benefit of all
       the people (including future generations as yet unborn) and that the
       Commonwealth is made the trustee of said resources, commanded to

       But, while the Payne test may have answered a call for guidance on substantive
       standards in this area of law and may be relatively easy to apply, the test poses
       difficulties both obvious and critical. First, the Payne test describes the
       Commonwealth’s obligations—both as trustee and under the first clause of
       Section 27—in much narrower terms than the constitutional provision. Second,
       the test assumes that the availability of judicial relief premised upon Section 27 is
       contingent upon and constrained by legislative action. And, finally, the
       Commonwealth Court’s Payne decision and its progeny have the effect of
       minimizing the constitutional duties of executive agencies and the judicial branch,
       and circumscribing the abilities of these entities to carry out their constitutional
       duties independent of legislative control. The branches of government have
       independent constitutional duties pursuant to the [ERA], as these duties are
       interpreted by the judicial branch and this Court in particular. Because of these
       critical difficulties, we conclude that the non-textual Article I, Section 27 test
       established in Payne and its progeny is inappropriate to determine matters
       outside the narrowest category of cases, i.e., those cases in which a challenge
       is premised simply upon an alleged failure to comply with statutory
       standards enacted to advance Section 27 interests.

Id. at 966-67 (emphasis added) (citations and parentheticals omitted).
        Because the above portion of the lead opinion in Robinson Township did not garner a
majority of the Supreme Court, the plurality’s rejection of the analytical framework discussed in
Payne and its progeny is not binding precedent. Pa. Envtl. Def. Found., 108 A.3d at 159. “For
our purposes, we find the plurality’s construction of [the ERA] persuasive only to the extent it is
consistent with binding precedent from this Court and the Supreme Court on the same subject.”
Id. at 156 n.37.

                                                5
      conserve and maintain them. . . . But merely to assert that one has a
      common right to a protected value under the trusteeship of the State,
      and that the value is about to be invaded, creates no automatic right to
      relief. The [ERA] speaks in no such absolute terms. The
      Commonwealth as trustee, bound to conserve and maintain public
      natural resources for the benefit of all the people, is also required to
      perform other duties, such as the maintenance of an adequate public
      highway system, also for the benefit of all the people.

Payne II, 361 A.2d at 272-73. Because it is the Commonwealth, not individual
agencies or departments, that is the trustee of public natural resources under the
ERA, and the Commonwealth is bound to perform a host of duties beyond
implementation of the ERA, the ERA must be understood in the context of the
structure of government and principles of separation of powers. In most instances,
the balance between environmental and other societal concerns is primarily struck
by the General Assembly, as the elected representatives of the people, through
legislative action. See Nat’l Solid Wastes Mgmt. Ass’n v. Casey, 600 A.2d 260,
265 (Pa. Cmwlth. 1991), aff’d, 619 A.2d 1063 (Pa. 1993) (holding that the
Governor can only execute laws and the balance required by the ERA was
achieved through legislative enactments). While executive branch agencies and
departments are, from time to time, put in the position of striking the balance
themselves, they do so only after the General Assembly makes “basic policy
choices” and imposes upon the agencies or departments “the duty to carry out the
declared legislative policy in accordance with the general provisions of the
statute.”   MCT Transp. Inc. v. Phila. Parking Auth., 60 A.3d 899, 904 (Pa.
Cmwlth.), aff’d sub nom. MCT Transp., Inc. v. Phila. Parking Auth., 81 A.3d 813
(Pa.), and aff’d sub nom. MCT Transp., Inc. v. Phila. Parking Auth., 83 A.3d 85
(Pa. 2013) (quotation omitted). The second provision of the ERA impels executive
branch agencies and departments to act in support of conserving and maintaining

                                         6
public natural resources, but it cannot operate on its own to “expand the powers of
a statutory agency . . . .” Cmty. Coll. of Delaware Cnty., 342 A.2d at 482. Thus,
courts assessing the duties imposed upon executive branch departments and
agencies by the ERA must remain cognizant of the balance the General Assembly
has already struck between environmental and societal concerns in an agency or
department’s enabling act. Id. at 473.


II.   PETITIONERS’ ALLEGATIONS
      Petitioners allege a series of facts related to the “overwhelming scientific
consensus that human-caused climate change is occurring” and that humans can
mitigate the effects of climate change by restricting activities that discharge GHGs
and encouraging activities that remove CO2 from the atmosphere. (Petition ¶¶ 35-
41.) Petitioners also allege that “climate change is already damaging human and
natural systems” across the globe and in Pennsylvania.         (Id. at ¶¶ 42, 54.)
According to the allegations:

      54. The effects of climate change are already occurring in
      Pennsylvania and are projected to significantly impact the
      Commonwealth in the future. In the past 110 years, the overall
      temperature in Pennsylvania has increased by 1.3°C (2.4°F) due to
      anthropogenic [GHG] emissions.
      55. Climate change is already disrupting the hydrological cycle in
      Pennsylvania and continued climate change wi[ll] lead to greater
      disruptions. Pennsylvania is already experiencing an increase in
      heavy precipitation events, a decrease in snow cover, a decrease in
      summer runoff, a decrease in summer and fall soil moisture, and an
      increase in short- and medium-term soil moisture droughts. Rising
      stream temperatures could also degrade water quality. Additionally,
      rising sea levels causes degradation of fresh groundwater supplies due
      to saltwater intrusion.


                                         7
      56. If the atmospheric concentration of CO2 rises to 450 ppm[,] sea
      levels are expected to rise at least 6-8 meters. This would be a major
      disruption to the Delaware River and Estuary, wetlands and parks
      along the river, and would inundate significant portions of
      Philadelphia, including the Philadelphia International Airport,
      Citizens Bank Park, the Philadelphia Navy Yard, the Philadelphia
      CSX rail yard, and numerous neighborhoods and other businesses.
      57. Rising temperatures are degrading, diminishing, and depleting
      the water quality and quantity of streams, rivers, and wetlands leading
      to a decrease in biodiversity. Some wetlands may also disappear due
      to increased evaporation and transpiration and longer dry periods.
      Increased water temperatures will degrade, diminish, and deplete
      cold-water aquatic species like brook trout while leading to an
      increase in invasive species.
      58. Climate change is degrading, diminishing, and depleting
      Pennsylvania’s forests and leading to species composition shifts,
      greater tree stress, shifts in regeneration rates, more tree mortality, and
      increases in insect, disease, and invasive species activities.
      59. Higher temperatures contribute to heat-related deaths and also
      lead[] to increased formation of ground-level ozone. Ozone is linked
      to adverse health impacts including asthma, respiratory infections,
      increased mortality, and wheezing. Other health impacts associated
      with climate change may include an increase in people su[ff]ering
      from allergies as pollen increases.
      60. Without immediate science-based reductions in CO2 and other
      GHGs, there is an immediate and substantial danger that within Youth
      [Petitioners] lives, higher temperatures, water and food shortages,
      droughts, floods, extreme weather events, sea level rise, and other
      climate impacts will make significant portions of Pennsylvania unfit
      to live in and will threaten the very survival of Pennsylvania citizens.
      This is not a distant threat but one that will be realized in the coming
      decades unless the Commonwealth acts with urgency to do its part to
      reduce CO2 and GHG emissions and restore the atmosphere.


(Id. at ¶¶ 54-60.) Petitioners allege that the consumption of fossil fuels within
Pennsylvania substantially contributes to climate change and ocean acidification
and cite to data from the United States Energy Information Agency stating that if


                                          8
Pennsylvania was a country, it would be the 26th largest emitter of GHGs in the
world. (Id. at ¶¶ 61, 64.)
       In order to combat climate change and stabilize GHGs in the atmosphere,
Petitioners allege that the current science confirms that humans must reduce CO2
concentrations to 350 parts per million (ppm) or less by the end of the current
century. (Id. at ¶¶ 66-67.) According to Petitioners’ allegations, further delay in
reducing CO2 concentrations in the atmosphere will make it “harder for
[Petitioners] and future generations to protect a livable world” and that current
climate change legislation and policy are not in line with achieving the goal of
reducing CO2 levels to 350 ppm by the end of the century. (Id. at ¶¶ 71, 74.)
Petitioners allege, based on current scientific projections, that “[i]t is imperative
that Respondents calibrate state emission limits to put Pennsylvania on a trajectory
aimed for 350 ppm and then establish a plan that will put Pennsylvania on track
towards ensur[ing] that Pennsylvania does its part to meet these limits.” (Id. at ¶
71.)
       With these factual allegations as predicate, Petitioners allege that the ERA
bestows upon them rights that must be protected by Respondents and that the
Commonwealth owes to them a fiduciary duty as public trustee to conserve and
maintain “clean air and safe levels of CO2 and GHGs in accordance with current
climate science.” (Id. at ¶ 88.) Specifically, Petitioners allege that Respondents
have not carried out their mandatory duty under the ERA to conduct various
“stud[ies], investigation[s], or [any] other analysis” related to how the rights
secured by the ERA are to be protected, and how the Commonwealth’s obligations
as a trustee of the public trust are to be fulfilled “in light of climate change and/or
increasing concentration of CO2 and GHGs in the atmosphere.” (Id. at ¶¶ 90 (a)-


                                          9
(c), (e)-(g).) Petitioners further allege that Respondents have not carried out their
mandatory duty to propose, promulgate, or issue executive orders or regulations
governing how the rights secured by the ERA are to be protected and have not
issued any similar regulations or executive orders limiting emissions of CO 2 and
GHGs in a comprehensive manner to protect the rights secured by the first
provision of the ERA or to satisfy their duties as trustees of the public trust
pursuant to the second provision of the same. (Id. at ¶¶ 90 (d), (h)-(j).) As a result
of Respondents’ failure take necessary action, Petitioners assert that they have
been, and will continue to be, injured and that their constitutional rights have been
violated.
      Petitioners request that we remedy the above harms and constitutional
violations by issuing a writ of mandamus requiring Respondents to:

      a. conduct — either individually or in combination with one or more
      other Respondents — a study, investigation, or other analysis to
      determine how the rights to clean air, pure water, and to the
      preservation of the natural, scenic, historic and esthetic values of the
      environment secured by the first [provision of the ERA] have been,
      are being, or in the future may be impacted by climate change and/or
      increasing concentrations of CO2 and GHGs in the atmosphere;
      b. conduct — either individually or in combination with one or more
      other Respondents — a study, investigation, or other analysis to
      determine what actions that the Respondents can take to protect the
      rights to clean air, pure water, and to the preservation of the natural,
      scenic, historic and esthetic values of the environment secured by the
      first [provision of the ERA] in light of climate change and/or
      increasing concentrations of CO2 and GHGs in the atmosphere;
      c. conduct — either individually or in combination with one or more
      other Respondents — a study, investigation, or other analysis to
      determine whether any actions that the Respondents have taken or will
      take are contrary to the rights to clean air, pure water, and to the
      preservation of the natural, scenic, historic and esthetic values of the
      environment secured by the first [provision of the ERA] in light of

                                         10
climate change and/or increasing concentrations of CO2 and GHGs in
the atmosphere;
d. promulgate by regulation, executive order, or other official action
setting forth a process for the rights to clean air, pure water, and to the
preservation of the natural, scenic, historic and esthetic values of the
environment secured by the first [provision of the ERA] are to be
considered, accounted for, or applied in decisions being made by the
Respondent;
e. conduct — either individually or in combination with one or more
other Respondents — a study, investigation, or other analysis to
determine what actions are necessary to conserve and maintain public
natural resources, including the atmosphere, in light of climate change
and/or increasing concentrations of CO2 and GHGs in the atmosphere
in order to satisfy their obligations as trustees of the public trust
created in the second [provision of the ERA];
f. conduct — either individually or in combination with one or more
other Respondents — a study, investigation, or other analysis to
determine what actions that the Respondents can take to conserve and
maintain public natural resources, including the atmosphere, in light
of climate change and/or increasing concentrations of CO2 and GHGs
in the atmosphere in order to satisfy their obligations as trustees of the
public trust created in the second [provision of the ERA];
g. promulgate by regulation, executive order, or other official action
setting forth a process for the obligations to conserve and maintain
public natural resources, the duties of loyalty, impartiality, and/or to
exercise ordinary skill, prudence, and caution in managing the public
trust assets as trustee of the public trust created in the second
[provision of the ERA] are to be considered, accounted for, or applied
in decisions being made by the Respondent;
h. prepare comprehensive regulations, in accordance with the current
science, designed to account for embedded emissions and reduce
carbon dioxide and other greenhouse gas emissions to safe levels and
thereby reach the concentrations that must be achieved to satisfy their
constitutional obligations as public trustees of the air and atmosphere;
i. implement regulations that will in fact reduce carbon dioxide and
other greenhouse gas emissions to safe levels and thereby reach the
concentrations that must be achieved to satisfy their constitutional
obligations as public trustees of the air and atmosphere;



                                    11
(Petition, Request for Relief ¶¶ 7 (a)-(i) (Mandamus Request).) Petitioners further
seek the following forms of declaratory relief:

       1. Declare that an atmosphere with safe levels of CO2 and GHGs is
       part of the right to clean air recognized in the first [provision of the
       ERA];
       2. Declare that the atmosphere is a public natural resource falling
       within the public trust established by [the second provision of the
       ERA];
       3. Declare each Respondent, as an agency or agent of the
       Commonwealth, has a duty to not act contrary to the fundamental
       right to clean air, pure water, and to the preservation of natural,
       historic, and esthetic values of the environment recognized in the first
       [provision of the ERA];
       4. Declare that each named Respondent, as an agency or agent of the
       Commonwealth, have [sic] public trustee duties to protect the
       atmosphere and other public natural resources pursuant to the public
       trust established by [the second provision of the ERA];
       5. Declare each Respondent, as an agency or agent of the
       Commonwealth, has failed to meet Respondent’s duty to not act
       contrary to the fundamental right to clean air, pure water, and to the
       preservation of natural, historic, and esthetic values of the
       environment recognized in the first [provision of the ERA] with
       respect to [CO2] and other [GHG] emissions;
       6. Declare that each named Defendant, as an agency or agent of the
       Commonwealth, has failed to meet the public trustee duties
       established by the second [provision of the ERA] with respect to
       [CO2] and other [GHG] emissions.


(Id. at ¶¶ 1-6.)3




       3
         Petitioners also seek costs, reasonable attorney’s fees, and other relief the court may
deem just and proper. (Petition, Request for Relief ¶¶ 8-9.)

                                              12
       While Petitioners allege that CO2 concentrations in the atmosphere above
350 ppm are unsafe and will make it harder for Petitioners to protect a livable
world, (Petition ¶¶ 70-71), Petitioners stress that their Petition

       does not seek to have this Court require Respondents to
       implement any particular set of regulations; rather, it asks this
       Court – via declaratory and mandamus relief – to require Respondents
       to determine what steps are necessary to conserve and maintain the
       public natural resources, including the atmosphere, in the face of
       climate change via regulation of CO2 and GHGs, develop a
       comprehensive plan to achieve those necessary steps, and to
       implement the comprehensive plan via regulations of CO2 and GHG
       emissions in order to satisfy the constitutional mandate in [the ERA]
       and thereby protect Petitioners as [ERA] beneficiaries.


(Petition ¶ 1 (emphasis in original).)


III.   RESPONDENTS’ POs
       Executive Branch Respondents object to the Petition through 12 POs and the
PUC Respondents assert an additional 7 POs. For the purpose of this opinion, we
will merge duplicative POs and construe the POs as asserting 10 distinct objections
that we have organized in the following manner for ease of discussion.
       Executive Branch Respondents first challenge this Court’s jurisdiction on
the basis that Petitioner Funk previously filed a rulemaking petition with the
Environmental Quality Board (EQB) on September 5, 2013, that is nearly identical
to the instant matter, which was denied and not subsequently appealed. (Executive
Branch Respondents’ POs (Exec. Branch POs) ¶ 49.)                    Executive Branch
Respondents contend that the current action is a collateral attack on the EQB ruling
and that absent a timely appeal to this Court in its appellate jurisdiction, this Court


                                           13
lacks jurisdiction to entertain the Petition in its original jurisdiction. (Id. at ¶¶ 52-
54, 115-18.)
      Respondents next allege that Petitioners lack standing to assert their claims
because the harm they allegedly suffer is remote, speculative, and generalized, and
the interest they assert does not surpass the common interest of all citizens who
have a general interest in the government obeying the law. (PUC POs ¶¶ 39-43;
Exec. Branch POs ¶¶ 131-33.)
      Third, Respondents assert that Petitioners cannot obtain mandamus relief as
the Petition does not allege facts necessary to satisfy the required elements of
mandamus relief. (PUC POs ¶ 51.) Central to Respondents’ argument is an
allegation that mandamus cannot be used to require the exercise of discretion in
any particular way, and Respondents understand the Petition as demanding
Respondents promulgate and implement regulations Petitioners think are
necessary. (Id. at ¶¶ 53-58.) Respondents further argue that mandamus will not lie
because alternative relief is available through a rulemaking petition to the
Department of Environmental Protection (DEP) or appeal of the previously
rejected decision of the EQB.       (Id. at ¶ 59; Exec. Branch POs ¶¶ 104-106.)
Executive Branch Respondents also allege that mandamus relief is not appropriate
when the writ will be futile, and here, requiring Respondents to act a particular
way in isolation from global and national regulators would not remedy the harms
alleged or lessen the threat of climate change. (Exec. Branch POs ¶ 110.)
      Fourth, the Executive Branch Respondents allege that the current action is
barred by the doctrine of exhaustion of administrative remedies and that Petitioners
do not fall under a recognized exception to the doctrine. (Id. at ¶¶ 87, 98-99.)
Executive Branch Respondents allege that, with the exception of Petitioner Funk,


                                           14
no other Petitioner has filed a rulemaking petition, and that the EQB has the
discretion to grant a subsequent petition from Petitioner Funk. (Id. at ¶¶ 89-91.)
      Fifth, both Respondents demur to the allegations in the Petition. Executive
Branch Respondents, relying on the Payne test, contend that Petitioners have not
alleged sufficient facts showing that Respondents did not comply with existing
laws or regulations, did not make a reasonable effort to reduce CO2 and GHG
emissions, or that the harm of any decision outweighs the benefits derived from
such decisions. (Id. at ¶¶ 59-62.) Respondents further allege that the relief sought
by Petitioners is already being carried out by Respondents through a variety of
programs and strategies, including, but not limited to, the 2009 Climate Impacts
Assessment Report and Climate Change Action Plan. (Id. at ¶¶ 64-66; PUC POs
¶¶ 90-100.)
      Respondents next allege that the Petition lacks specificity.              PUC
Respondents contend that the Petition does not allege any facts particular to the
PUC Respondents, nor state within any specificity how the PUC Respondents
actions or inactions were unlawful. (PUC POs ¶¶ 82-85.) Similarly, Executive
Branch Respondents allege that the Petition “do[es] not articulate the specific
actions each of the Respondents are engaged in or how they injured [Petitioners].”
(Exec. Branch POs ¶ 142.)
      Seventh, Respondents contend that some of the Respondents are improper
parties to the action. Executive Branch Respondents allege that Governor Tom
Wolf, the Department of Conservation and Natural Resources (DCNR), the
Department of Transportation, Department of Agriculture, the PUC, and
Secretaries Dunn, Richards, and Redding, as well as Chairperson Brown, are not
proper parties because their interests are fully represented by DEP and its


                                         15
Secretary, John Quigley,4 who also serves as Chair of the EQB. (Id. at ¶¶ 159-60.)
Executive Branch Respondents argue that none of the above parties “have statutory
or regulatory authority to regulate CO2 or GHGs as part of their official duties,”
and “[t]o include them … is unnecessary and duplicative.” (Id. at ¶ 162.) The
PUC Respondents echo the Executive Branch Respondents’ allegations and
contend that the PUC has no authority to regulate CO2 or GHGs and that DEP, the
EQB, and Secretary Quigley are the proper parties. (PUC POs ¶¶ 30-34.)
      Eighth, Respondents assert the affirmative defense of sovereign immunity.
Citing to Fawber v. Cohen, 532 A.2d 429, 433-34 (Pa. 1987), Respondents allege
that the doctrine of sovereign immunity bars suits that “seek to compel affirmative
action on the part of state officials.” (Exec. Branch POs ¶ 121; PUC POs ¶ 63
(emphasis in original).) According to the PUC’s POs, because Petitioners seek an
order requiring “Respondents to promulgate regulations, adopt specific policies,
and generally perform their duties in the way that Petitioners want,” the Petition
cannot clear the bar of sovereign immunity. (PUC POs ¶ 65.)
      Ninth, Respondents allege that declaratory relief is improper because it
would amount to “advisory opinions which can have ‘no practical effect on the
parties.’” (Exec. Branch POs ¶ 124 (quoting Swift v. Dep’t. of Transp., 937 A.2d
1162, 1169 (Pa. Cmwlth. 2007)).) Respondents allege that the declaratory relief
sought would not tell Respondents what needs to be done to satisfy their trustee
obligation because the Commonwealth is bound to both conserve public natural
resources and do other things also for the benefit of the people. (Id. at ¶ 127.)
According to the PUC, because Petitioners’ claims for declaratory relief have no

      4
          John Quigley resigned as Secretary of DEP on May 20, 2016. Patrick McDonnell
currently serves as Acting Secretary of DEP.

                                         16
practical effect, they should “fall along with the [mandamus] claim [these claims]
serve[] to support.” (PUC POs ¶ 67-68 (quoting Stackhouse v. Pa. State Police,
892 A.2d 54, 62 (Pa. Cmwlth. 2006)).)
      Finally, Respondents allege that the Petition asks this Court to decide a non-
justiciable political question. (Exec. Branch POs ¶ 145; PUC POs ¶ 70.) The PUC
asserts that “[t]he continuing development and implementation of [GHG] emission
reduction strategies should remain with the executive agencies charged with those
responsibilities under the law, as they possess the technical program expertise and
scientific background necessary for such regulations.”         (PUC POs ¶ 76.)
According to the Executive Branch Respondents, “[c]ourts do not possess the
scientific and technological expertise to evaluate the current science and to make
conclusions, which would amount to policy determinations, based on their
evaluations and therefore cannot resolve the dispute in the way intended by
[Petitioners].” (Exec. Branch POs ¶ 150.)


IV.   DISCUSSION
      In assessing the POs, we are mindful that “this Court must accept as true all
well-pleaded allegations of material facts in the [Petition], as well as all of the
inferences reasonably deducible from those facts.” Funk v. Dep’t of Envtl. Prot.,
71 A.3d 1097, 1101 n.4 (Pa. Cmwlth. 2013). A PO will only be sustained where it
“appear[s] with certainty that the law will permit no recovery” and “[a]ny doubt
must be resolved in favor of the non-moving party.” Guarrasi v. Scott, 25 A.3d
394, 400 n.5 (Pa. Cmwlth. 2011).


      A.    Jurisdiction


                                        17
       Whether this Court has subject matter jurisdiction over a petition for review
is a threshold matter that must be addressed prior to considering any of the issues
asserted therein. Borough of Olyphant v. Pa. Pub. Util. Comm’n, 861 A.2d 377,
382 n.10 (Pa. Cmwlth. 2004). Executive Branch Respondents argue that this Court
lacks subject matter jurisdiction over the Petition because it is not vested with
authority to engage in rulemaking or to compel specific rulemaking. Executive
Branch Respondents contend that “this Court’s original jurisdiction is limited to
items that are not in its appellate jurisdiction.” (Executive Branch Respondents’
Brief (Exec. Branch Br.) at 21 (citing Pa. Dept. of Aging v. Lindberg, 469 A.2d
1012, 1017-18 (Pa. 1983)).)         Thus, it is the Executive Branch Respondents’
contention that because a petitioner may file a rulemaking petition with the EQB
pursuant to Section 1920-A(h) of the Administrative Code of 19295 and this Court
has appellate jurisdiction over final orders of the EQB, this Court cannot exercise
original jurisdiction over suits requesting rulemaking.
       Petitioners argue in response that their action asserts “classic mandamus
relief” based on Respondents’ failure to perform their duties mandated by the
ERA, which is within this Court’s jurisdiction.              Petitioners assert that the
Executive Branch Respondents’ objection rests on an improper understanding of
the relief sought. Petitioners contend that they do not request that this Court
impose any specific regulatory regime; rather, they ask this Court to require



       5
         Act of April 9, 1929, P.L. 177, as amended, 71 P.S. § 510-20(h). Section 1920-A was
added by the Act of December 3, 1970, P.L. 834, 71 P.S. § 510-20(h). Section 1920-A(h)
provides: “Any person may petition the Environmental Quality Board to initiate a rule making
proceeding for the issuance, amendment or repeal of a regulation administered and enforced by
the department.” Id.

                                             18
Respondents to develop approaches in a manner determined by Respondents that
will ensure that Petitioners’ constitutional rights under the ERA are protected.
       Pursuant to Section 761(a)(1) of the Judicial Code, this Court has “original
jurisdiction of all civil actions or proceedings . . . [a]gainst the Commonwealth
government, including any officer thereof.” 42 Pa. C.S. § 761(a).6 Further Section
761(c) provides this Court with original jurisdiction “in cases of mandamus and
prohibition to . . . other government units where such relief is ancillary to matters
within its appellate jurisdiction.” 42 Pa. C.S. § 761(c). This Court’s appellate
jurisdiction is set forth in Section 763(a) of the Judicial Code, which provides:

       Except as [not relevant here], the Commonwealth Court shall have
       exclusive jurisdiction of appeals from final orders of government
       agencies in the following cases:

              (1) All appeals from Commonwealth agencies under
              Subchapter A of Chapter 7 of Title 2 (relating to judicial review
              of Commonwealth agency action) or otherwise and including
              appeals from the Board of Claims, the Environmental Hearing
              Board, the Pennsylvania Public Utility Commission, the
              Unemployment Compensation Board of Review and from any
              other Commonwealth agency having Statewide jurisdiction.

              (2) All appeals jurisdiction of which is vested in the
              Commonwealth Court by any statute hereafter enacted.


42 Pa. C.S. § 763(a). In construing these provisions, the Pennsylvania Supreme
Court has said:




       6
           Section 761(a)(1)(i)-(v) provides for certain exceptions to this Court’s original
jurisdiction, none of which are relevant here.

                                            19
       those matters our legislature has placed within Commonwealth
       Court’s appellate jurisdiction under Section 763 are excluded from its
       original jurisdiction under Section 761(a)(1).            In short, the
       Commonwealth Court’s original jurisdiction of actions against the
       Commonwealth is limited to those not within its Section 763 appellate
       jurisdiction over appeals from Commonwealth agencies, whether
       directly under Section 763(a)(1) or (2), indirectly under Section
       762(a)(3) or (4) or otherwise within its appellate jurisdiction.


Lindberg, 469 A.2d at 1015-16.
       Whether we have jurisdiction over the instant action, therefore, turns on
whether we would have appellate jurisdiction over the matter. While we agree that
we would have appellate jurisdiction over a final order of the EQB denying a
rulemaking petition pursuant to Section 1920-A(h) of the Administrative Code of
1929, and a final order of the Environmental Hearing Board (EHB) denying an
appeal of a DEP decision to not submit a rulemaking petition to the EQB pursuant
to Section 4 of the Environmental Hearing Board Act,7 we would not have
appellate jurisdiction over the instant matter. According to DEP’s regulations, a
successful rulemaking petition must include either “[s]uggested regulatory
language if the petition requests that the EQB adopt or amend regulations,” or “[a]
specific citation to the regulations to be repealed if the petition requests that the
EQB repeal existing regulations.” 25 Pa. Code § 23.1(a)(2). Petitioners would not
be able to file a successful rulemaking petition based on the allegations before us
because they do not seek the enactment of a specific regulation or repeal of an
existing regulation.8      Rather, Petitioners ask that we order the EQB to enact

       7
         Act of July 13, 1988, P.L. 530 § 4, as amended, 35 P.S. § 7514.
       8
         This is in contrast to a previous Rulemaking Petition filed by Petitioner Funk. Ms. Funk
submitted a rulemaking petition on September 5, 2013, requesting the EQB promulgate a
regulation reducing the amount of CO2 emitted from fossil fuel burning by at least six percent per
                                                                                 (Continued…)
                                               20
whatever regulation EQB deems to be required to satisfy the ERA after conducting
appropriate studies discovering what would be required to protect Petitioners’
rights in light of the threat of climate change. The only court in which Petitioners
could try to seek such a remedy, if one is available at all, is in this Court’s original
jurisdiction. 42 Pa. C.S. § 761(b) (providing that the original jurisdiction of this
Court “shall be exclusive except as provided in [sections not relevant here]”). We
therefore overrule Executive Branch Respondents’ preliminary objection alleging
that this Court lacks subject matter jurisdiction over the Petition.


      B.     Standing
      We next address Respondents’ challenge to Petitioners’ standing, where
Respondents contend that the Petition merely asserts generalized injuries and
claims based upon remote and speculative allegations of harm.                     “When
determining whether [a party has] standing to challenge the legality of an action, it
must be assumed that the action is in fact contrary to some rule of law.” Wm. Penn
Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269, 287 n.32 (Pa. 1975). The
“core concept [of standing] is that a person who is not adversely affected in any
way by the matter he seeks to challenge is not ‘aggrieved’ thereby and has no
standing to obtain a judicial resolution of his challenge.” Id. at 280. A person is
sufficiently aggrieved under Pennsylvania’s prudential standing requirement “if he
can establish that he has a substantial, direct[,] and immediate interest in the




year through 2050. (Petition ¶ 6; Exec. Branch POs at App. 1, p. 3) Ms. Funk also filed an
almost identical rulemaking petition in 2012, which was addressed by this Court in Funk v.
Department of Environmental Protection, 71 A.3d 1097 (Pa. Cmwlth. 2013).

                                           21
outcome of the litigation.” Fumo v. City of Philadelphia, 972 A.2d 487, 496 (Pa.
2009) (emphasis added).
      “A party has a substantial interest in the outcome of litigation if his interest
surpasses that of all citizens in procuring obedience to the law.” Id. (quotation
omitted) (emphasis added). While the harm alleged must be substantial, it need not
be pecuniary in nature. See Wm. Penn Parking, 346 A.2d at 281 n.20 (quoting
Sierra Club v. Morton, 405 U.S. 727, 734 (1972) (“Aesthetic and environmental
well-being, like economic well-being, are important ingredients of the quality of
life in our society, and the fact that particular environmental interests are shared by
the many rather than the few does not make them less deserving of legal protection
through the judicial process.”)). An interest is direct if there is a causal connection
between the matter complained of and the harm alleged. Fumo, 972 A.2d at 496
(quotation omitted). An interest is immediate when the “causal connection is not
remote or speculative.” Id.
      While Pennsylvania’s prudential standing requirement differs from standing
under Article III of the United States Constitution as applied in federal courts,
Pennsylvania courts often look to federal standing decisions for guidance. Id. at
500 n.5. The United States Supreme Court has long “held that environmental
plaintiffs adequately allege injury in fact when they aver that they use the affected
area and are persons for whom the aesthetic and recreational values of the area will
be lessened by the challenged activity.” Friends of the Earth, Inc. v. Laidlaw
Envtl. Servs. (TOC), Inc., 528 U.S. 167, 183 (2000) (internal quotation marks
omitted); see also Lujan v. Defs. of Wildlife, 504 U.S. 555, 562-63 (1992) (“the
desire to use or observe an animal species, even for purely esthetic purposes, is
undeniably a cognizable interest for purpose of standing”); Sierra Club, 405 U.S. at


                                          22
734 (“Aesthetic and environmental well-being, like economic well-being, are
important ingredients of the quality of life in our society”). Moreover, federal
precedent is clear that “the fact that particular environmental interests are shared
by the many rather than the few does not make them less deserving of legal
protection through the judicial process.” Id.; see also Massachusetts v. Envtl. Prot.
Agency, 549 U.S. 497, 522 (2007) (“That . . . climate-change risks are ‘widely
shared’ does not minimize Massachusetts’ interest in the outcome of this
litigation”); United States v. Students Challenging Regulatory Agency Procedures
(SCRAP), 412 U.S. 669, 688 (1973) (“To deny standing to persons who are in fact
injured simply because many others are also injured, would mean that the most
injurious and widespread Government actions could be questioned by nobody. We
cannot accept that conclusion.”).
      In Friends of the Earth, the United States Supreme Court addressed a citizen
suit authorized by Section 505(a) of the federal Clean Water Act.9 The petitioner
alleged that by discharging pollutants into a waterway, the defendant violated the
Clean Water Act and the conditions of its discharge permit issued by the state

      9
          33 U.S.C. § 1365(a). Pursuant to Section 505(a):

               any citizen may commence a civil action on his own behalf--
               (1) against any person (including (i) the United States, and (ii) any other
               governmental instrumentality or agency to the extent permitted by the
               eleventh amendment to the Constitution) who is alleged to be in violation
               of (A) an effluent standard or limitation under this chapter or (B) an order
               issued by the Administrator or a State with respect to such a standard or
               limitation, or
               (2) against the Administrator where there is alleged a failure of the
               Administrator to perform any act or duty under this chapter which is not
               discretionary with the Administrator.

Id.

                                               23
department of health. Friends of the Earth, 528 U.S. at 176. The petitioner averred
that it had standing as an association because some of its members have standing.
Id. at 181-82. One of its members alleged that he lived close to the waterway and
that it smelled polluted as he drove by. Id. The member also alleged that he liked
to fish, camp, swim, and picnic by the river, and that he would not do so now due
to the discharges. Id. at 182. Other members alleged that they liked to walk,
birdwatch, and hike near the waterway, but would no longer do so. Id. The Court
held that the association had standing based on the averments of its individual
members. Id. at 183. According to the Court,


      We have held that environmental plaintiffs adequately allege injury in
      fact when they aver that they use the affected area and are persons for
      whom the aesthetic and recreational values of the area will be
      lessened by the challenged activity . . . . [T]he affidavits and
      testimony presented by [plaintiff] in this case assert that [defendant’s]
      discharges, and the affiant members’ reasonable concerns about the
      effects of those discharges, directly affected those affiants’ recreational,
      aesthetic, and economic interests.           These submissions present
      dispositively more than the mere general averments and conclusory
      allegations . . .


Id. at 183-84 (quotations omitted) (emphasis added).
      The Pennsylvania Supreme Court applied the above principles in Robinson
Township.10    There, the Court addressed an appeal of this Court’s decision
sustaining, in part, the Commonwealth’s preliminary objections to a challenge to
Act 13 of 2012, a statute amending the Pennsylvania Oil and Gas Act, 11 by several


      10
          While much of Robinson Township is non-binding, Section A of the lead opinion
addressing standing was supported by a majority of the Supreme Court.
       11
          Act of February 14, 2012, P.L. 87, 58 Pa. C.S. §§ 2301 – 3504.

                                          24
municipalities, two residents and elected officials, a non-profit environmental
group and its executive director, and a physician who treats patients allegedly
impacted by the challenged activity (together, “citizens”). Relevant to the instant
matter, the Commonwealth argued that the harm alleged by the citizens is
speculative and remote and that there were “other parties better positioned to raise
[the] claims.” Robinson Twp., 83 A.3d at 921. In response, the citizens generally
argued that they had standing because Marcellus Shale drilling directly impacted
them and that Act 13’s regulatory scheme violated, inter alia, the ERA. Id. at 915-
16. The Court agreed with the citizens and concluded:


      In response to preliminary objections, the citizens relied on of-record
      affidavits to show that individual members of the [non-profit
      organization] are Pennsylvania residents and/or owners of property
      and business interests in municipalities and zoning districts that either
      already host or are likely to host active natural gas operations related
      to the Marcellus Shale Formation. Like [two other individual
      landowners] (as to whom the Commonwealth conceded the standing
      issue), these members asserted that they are likely to suffer
      considerable harm with respect to the values of their existing homes
      and the enjoyment of their properties given the intrusion of industrial
      uses and the change in the character of their zoning districts effected
      by Act 13. These individual members have a substantial and
      direct interest in the outcome of the litigation premised upon the
      serious risk of alteration in the physical nature of their respective
      political subdivisions and the components of their surrounding
      environment. This interest is not remote.

Id. at 922 (emphasis added) (record citations omitted).
      Here, Petitioner McIntyre alleges that she is 10 years old, lives in
Philadelphia, and attends fourth grade at Germantown Friends School. (Petition ¶
9.) She suffers from asthma and a pollen allergy and is concerned about how
climate change will impact her conditions. (Id.) Ms. McIntyre also alleges that

                                         25
rising sea levels associated with climate change threaten to inundate her home
town of Philadelphia with floodwaters, and that rising temperatures are associated
with a reduction in snow that will limit her ability to go skiing in the Pocono
Mountains and other locations.     (Id.)    In addition to concern over the future
impacts of climate change, Ms. McIntyre alleges that climate change is impacting
her life and environment now in the following ways: “[t]he increasingly hot
summer temperatures have ma[d]e it hard for [her] to enjoy outdoor activities, such
as riding bikes, hiking, and playing soccer”; she likes to hike but her enjoyment of
the forests is reduced by the prevalence of dangerous ticks and the disruption of
wildlife caused by climate change; and the increasing frequency and
destructiveness of storms poses an immediate threat to her safety, well-being, and
ability to use and enjoy her property. (Id. at ¶¶ 9-10) Ms. McIntyre cites to
examples where she has allegedly been threatened by extreme weather events
caused by climate change: first, she has “experienced tornadoes where she lives,
which are not normal and have been linked to climate change,” and second, she
was involved in an incident during Hurricane Sandy in October of 2012 where she
and her mother “got stuck in floodwaters when a stream by her house overflowed
its banks.” (Id. at ¶ 10.)
      Further, Ms. McIntyre alleges that she, and the other minor Petitioners,

      represent the youngest living generation of Pennsylvania’s public trust
      beneficiaries, and have a substantial, direct, and immediate interest in
      protecting the environment, their quality of life, and in ensuring that
      the climate remains stable enough to secure their constitutional rights
      to a livable future. A livable future includes the opportunity to drink
      clean water, to grow food that will abate hunger, to be free from direct
      and imminent property damage caused by extreme weather events, to
      be able to enjoy and benefit from the use of property, and to enjoy the
      abundant and rich biodiversity in Pennsylvania. []Petitioners are

                                           26
       suffering both immediate and threatened injuries as a result of actions
       and inactions by Respondents and will continue to suffer more injuries
       to their health, personal safety, bodily integrity, cultural and spiritual
       practices, economic stability, food security, property, and recreational
       interests without the relief sought here. The relief requested will
       redress the [] Petitioners’ injuries by reducing the conditions from
       climate change that adversely affect the [] Petitioners.


(Id. at ¶ 23.)
       Based on these allegations, which we must accept as true, Ms. McIntyre has
sufficiently alleged facts conferring her standing to assert the claims in the Petition.
First, as to whether her interest is substantial, Ms. McIntyre avers that climate
change and Respondents’ failure to act appropriately to combat the climate crisis
has diminished her ability to engage in activities she enjoys, threatens her safety,
and raised concern over whether her health and enjoyment of the environment will
be negatively diminished in the future. (Id. at ¶¶ 9-10.) These allegations sound
much like those asserted in Friends of the Earth and Robinson Township, which
were found to be beyond the abstract interest of the general public in ensuring
obedience with the law. While many people like to hike and are impacted by
severe weather, Ms. McIntyre’s allegations that her ability to enjoy outdoor
activity is diminished and that she has been harmed by floods linked to climate
change have sufficiently distinguished her “from those asserting only the common
right of the entire public that the law be obeyed.” Wm. Penn Parking, 346 A.2d at
287.
       Respondents distinguish Robinson Township and similar cases upon which
Petitioners rely by arguing that those cases involve appeals of actions – permit
decisions or legislation enactments – that resulted in harm to those persons, and
not, as here, the harm based on Respondents’ alleged failure to act that is generic

                                          27
and no different from the interests of the general public. Respondents are correct
that, heretofore, we have not addressed a case where the alleged harm and violation
of law is the government’s failure to act. However, 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. Instead of asserting a right to relief under the
first provision of the ERA, Ms. McIntyre asserts a right to relief under the second
provision of the ERA, which “places an affirmative duty on the Commonwealth to
‘prevent and remedy the degradation, diminution, or depletion of our public natural
resources.’” Pa. Envtl. Def. Found. 108 A.3d at 168 (quoting the ERA).
      Next, as to whether Ms. McIntyre’s interests are “direct,” Respondents argue
that Ms. McIntyre asserts generalized injuries that may or may not be directly
related to climate change and that some of the injuries are associated with activities
conducted outside of Pennsylvania. Respondents further argue that Ms. McIntyre
has not connected these speculative impacts to any action by Respondents.
However, Ms. McIntyre specifically alleges a causal connection by asserting that
she is harmed by climate change and that Respondents have violated their duty to
conserve and maintain the natural resources as required by the ERA. (Petition ¶¶
90, 92.)   Specifically, Ms. McIntyre alleges that “[b]ecause of Respondents’
failures to carry out their mandatory duties under [the ERA], dangerous levels of
CO2 and GHGs are occurring which have unreasonably contributed to the actual
degradation of the air, water, and natural, historic, and esthetic values of the
environment.” (Id. at ¶ 92.) Ms. McIntyre has thus alleged a causal connection
between the harm alleged and the alleged inaction of Respondents.


                                         28
       Finally, as to whether Ms. McIntyre’s interests are “immediate,”
Respondents contend that the remote and speculative nature of Ms. McIntyre’s
claims are illustrated by Petitioners’ factual allegations. PUC Respondents point to
the numerous portions of the Petition discussing the “expected” impacts of climate
change, and allegations that due to these impacts, Petitioners “could” be harmed.
Ms. McIntyre alleges that she and the other Petitioners are suffering harm based on
the threat of climate change now, and the fact that many of the deleterious effects
of climate change will allegedly occur in the coming decades does not render their
interests remote. Like the petitioners in Robinson Township, whom the Supreme
Court concluded had immediate interests in the litigation based on allegations of
likely harms, Ms. McIntyre alleges both present and likely future harms. We have
said that “[a]n immediate interest is shown ‘where the interest the party seeks to
protect is within the zone of interests sought to be protected by the statute or the
constitutional guarantee in question.’” Unified Sportsmen of Pa. ex rel. Their
Members v. Pa. Game Comm’n, 903 A.2d 117, 123 (Pa. Cmwlth. 2006) (quoting
George v. Pa. Pub. Util. Comm’n, 735 A.2d 1282, 1286 (Pa. Cmwlth. 1999)). The
zone of interest protected by the ERA is the rights of all the people of the
Commonwealth, including future generations. Pa. Envtl. Def. Found. 108 A.3d
at 157. 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 ERA. For these reasons, Ms. McIntyre
has standing, and we therefore overrule Respondents’ POs alleging that Petitioners
lack standing. (Exec. Branch POs ¶¶ 129-38; PUC POs ¶¶ 35-46.)12

       12
         The remaining Petitioners assert identical causes of actions as Ms. McIntyre. Because
we conclude that Ms. McIntyre has standing, we need not address whether the other Petitioners
                                                                             (Continued…)
                                             29
       C.     Mandamus
       Mandamus is an extraordinary remedy “designed to compel the performance
of a ministerial act or mandatory duty, as opposed to a discretionary act.” Unified
Sportsmen, 903 A.2d at 125. Mandamus cannot be used to direct the exercise of
judgment or discretion in any particular way. Clark v. Beard, 918 A.2d 155, 159
(Pa. Cmwlth. 2007). Nor will it issue to establish legal rights. Id. “We may issue
a writ of mandamus only where the petitioner has a clear legal right to enforce the
performance of a ministerial act or mandatory duty, the defendant has a
corresponding duty to perform the act[,] and the petitioner has no other adequate or
appropriate remedy.” Unified Sportsmen, 903 A.2d at 125.
       Petitioners argue that the ERA imposes certain mandatory duties, including
the duty “to prevent and remedy the degradation, diminution, or depletion of our
public natural resources.” (Petitioners’ Br. at 18 (quoting Robinson Twp, 83 A.3d
at 957).) It is long established that the ERA charges the Commonwealth “with the
duty of conserving and maintaining [public natural resources] for the benefit of the
people.” Snelling v. Dep’t of Transp., 366 A.2d 1298, 1305 (Pa. 1976). The
question posed, however, is not whether the ERA imposes mandatory duties in the
general sense, but whether the ERA provides Petitioners with a clear right to the
performance of the specific acts for which Petitioners requests a writ, and whether
the performance of such acts by Respondents is mandatory in nature.
       We addressed the mandatory duties imposed upon executive branch agencies
and officials in Community College of Delaware County and National Solid

also have standing to reach the merits of this case. See Callowhill Neighborhood Ass’n v. City
of Philadelphia Zoning Bd. of Adjustment, 118 A.3d 1214, 1220-21 (Pa. Cmwlth.), appeal
denied, 129 A.3d 1244 (Pa. 2015) (concluding that because one objector in a zoning appeal
raised all the arguments at issue below and has standing, the Court need not address whether the
other objectors also have standing).

                                              30
Wastes Management Association. Delaware County involved an appeal of the
EHB’s decision to reverse the grant of a sewage permit issued by the Department
of Environmental Resources (DER).13 The EHB concluded in that case that DER
did not adequately consider the environmental impact of the proposed sewage lines
in light of the requirements of the ERA. Cmty. Coll. of Delaware Cnty., 342 A.2d
at 474. According to the EHB, prior to issuing the permit, DER was required to
assess the long-range and indirect impact of the sewer project on the values
expressed in the ERA, consider alternative methods of using the resources in
question, and consider alternative methods of attaining the objectives sought by the
permit. Id. Upon review, we evaluated the mandates of the Clean Streams Law, 14
the law governing DER’s permit process. Id. at 477-78. Finding no requirement in
the Clean Stream Law to conduct the analysis proscribed by the EHB, we held that
by requiring DER to examine issues outside those required by the Clean Streams
Law, the EHB imposed requirements that extended beyond what was intended by
the General Assembly. Id. at 480. While we noted that the ERA “may impose an
obligation upon the Commonwealth to consider the propriety of preserving land as
open space, it cannot legally operate to expand the powers of a statutory
agency . . . .” Id. at 482 (emphasis added). We held that the ERA “could operate
only to limit such powers as had been expressly delegated by proper enabling
legislation.” Id. (emphasis added).
       This Court applied the above holding to an executive action in which the
Governor issued Executive Order 1989–8 governing municipal waste disposal

       13
          DER was renamed as the Department of Environmental Protection (DEP) on July 1,
1995 pursuant to the Section 501 of the Conservation and Natural Resources Act, Act of June 28,
1995, P.L 89, 71 P.S. § 1340.501.
       14
          Act of June 22, 1937, as amended, 35 P.S. §§ 691.1 – 691.1001.

                                              31
throughout the Commonwealth. The executive order effectively ordered DER to
stop reviewing applications or issuing permits for new landfills until DER
developed and adopted a state-wide Municipal Waste Management Plan. Nat’l
Solid Wastes Mgmt. Ass’n., 600 A.2d at 261. The executive order further “set[] a
standard for determining maximum and average waste volume limits for existing
landfills.” Id. at 264. Relevant to the instant matter, the Commonwealth argued
that the Governor had the authority to issue Executive Order 1989–8 pursuant to
the Governor’s obligations under the ERA. Id. at 265. An association of waste
management providers sought declaratory relief stating that the executive orders
contravened   statutes   and   associated    regulations   governing   solid   waste
management, which, the association argued, formed a comprehensive scheme for
the regulation of municipal waste landfills.     Id. at 262. We agreed with the
association. According to the Court:

      Our review of [municipal waste statutes] and the regulations
      promulgated pursuant thereto, indicate the General Assembly’s clear
      intent to regulate in plenary fashion every aspect of the [disposal of
      solid waste]. Executive Order 1989–8 clearly conflicts with those acts
      and regulations, none of which provide the Governor with the
      authority to have issued such an executive order. . . . Additionally,
      we find no authority for Executive Order 1989–8 in [the ERA]. The
      balancing of environmental and societal concerns, which the
      Commonwealth argues is mandated by [the ERA], was achieved
      through the legislative process which enacted Acts 97 and 101 and
      which promulgated the applicable regulations. [The ERA] does
      not give the Governor the authority to disturb that legislative
      scheme. Neither does it give him the authority to alter DER’s
      responsibilities pursuant to that scheme.

Id. at 265 (emphasis added) (quotations and citations omitted).
      Because the ERA does not authorize Respondents to disturb the legislative
scheme, we must assess whether the actions requested are otherwise made

                                        32
mandatory by the climate change legislative scheme. While the General Assembly
has enacted a variety of provisions that directly and indirectly impact global
climate change, the current climate change legislative scheme is primarily
comprised of the Pennsylvania Climate Change Act (CCA),15 and the Air Pollution
Control Act (APCA).16 Respondents acknowledge that they have mandatory duties
pursuant to Sections 3(c) and 7(a) of the CCA, 71 P.S. §§ 1361.3(c), 1361.7(a), to
examine the potential impacts of climate change and to submit a report and an
action plan to the Governor every three years. (Exec. Branch POs ¶¶ 17-18, 148.)
Respondents further acknowledge that the General Assembly, through the APCA,
bestowed upon them a duty to promulgate and implement rules and regulations to
reduce CO2 and GHG emissions.17 (Id. at ¶ 149.) Respondents argue that the
legislative scheme does not require them to combat climate change through the
steps outlined in Petitioners’ request for a writ of mandamus.

       15
           Act of July 9, 2008, P.L. 935, 71 P.S. §§ 1361.1 – 1361.8.
       16
           Act of January 8, 1960, P.L. 2119, as amended, 35 P.S. §§ 4001 – 4015.
        17
           Respondents’ duties to this end derive, in part, from Section 5(a)(8) of the APCA, 35
P.S. § 4004(1), which requires the EQB to adopt rules and regulations to implement the federal
Clean Air Act, 42 U.S.C. §§ 7401-7671q. The United States Supreme Court, in Massachusetts v.
Environmental Protection Agency, 549 U.S. at 528-29, had “little trouble” concluding that GHGs
are “air pollutants” as defined by the Act and that the Environmental Protection Agency may
regulate GHGs. According to the Court:

       The Clean Air Act’s sweeping definition of “air pollutant” includes “any air
       pollution agent or combination of such agents, including any physical, chemical ...
       substance or matter which is emitted into or otherwise enters the ambient air ... .”
       § 7602(g) (emphasis added). On its face, the definition embraces all airborne
       compounds of whatever stripe, and underscores that intent through the repeated
       use of the word “any.”            Carbon dioxide, methane, nitrous oxide, and
       hydrofluorocarbons are without a doubt “physical [and] chemical ... substance [s]
       which [are] emitted into ... the ambient air.” The statute is unambiguous.

Id. (quoting the Clean Air Act, 42 U.S.C. § 7602(g)) (emphasis in original).

                                               33
       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.18 Thus, we conclude that because
Petitioners do not have a clear right to have Respondents conduct the requested
studies, promulgate or implement the requested regulations, or issue the requested
executive orders, mandamus will not lie and we sustain Respondents’ POs to that
end. (Exec. Branch POs ¶¶ 100-09; PUC POs ¶¶ 47-60.)


       D.     Declaratory Relief
       Petitioners’ remaining requests seek declaratory relief pursuant to the
Declaratory Judgments Act, 42 Pa. C.S. §§ 7531 – 7541.

       [T]he purpose of the Declaratory Judgment[s] Act . . . is to “settle and
       to afford relief from uncertainty and insecurity with respect to rights,
       status, and other legal relations, and is to be liberally construed and
       administered,” the availability of declaratory relief is limited by
       certain justiciability concerns. In order to sustain an action under the
       Declaratory Judgment[s] Act, a plaintiff must allege an interest which
       is direct, substantial and immediate, and must demonstrate the
       existence of a real or actual controversy, as the courts of this
       Commonwealth are generally proscribed from rendering decisions in
       the abstract or issuing purely advisory opinions.

       18
          We note that DEP conducted a thorough analysis of the activities it and other agencies
are currently conducting pursuant to various statutory and regulatory requirements in response to
Petitioner Funk’s September 5, 2013 Rulemaking Petition that is attached to the Executive
Branch Respondents’ POs. (Exec. Branch POs, App. 2.)

                                               34
Office of Governor v. Donahue, 98 A.3d 1223, 1229 (Pa. 2014) (citation omitted).
“Granting or denying an action for a declaratory judgment is committed to the
sound discretion of a court of original jurisdiction.” Pa. Envtl. Def. Found., 108
A.3d at 154.
      Petitioners request this Court to declare that: (1) the right to safe levels of
CO2 and other GHGs in the atmosphere is protected by the ERA and that
Respondents have a duty to not act contrary to, and protect, that right; and (2)
Respondents have failed to meet these obligations. (Declaratory Relief Requests
¶¶ 1-6.)   Granting Petitioners’ declaratory relief on these questions is not
appropriate under the Declaratory Judgments Act because doing so would require
us to enter an advisory opinion. “[D]eclaratory judgment must not be employed . .
. as a medium for the rendition of an advisory opinion which may prove to be
purely academic.” Gulnac by Gulnac v. S. Butler Cnty. Sch. Dist., 587 A.2d 699,
701 (Pa. 1991). “Courts generally should refuse to grant requests for declaratory
judgment where it would not resolve the controversy or uncertainty which spurred
the request.”    Rendell v. Pa. State Ethics Comm’n., 938 A.2d 554, 559 (Pa.
Cmwlth. 2007).
      Petitioners’ request that we declare that an atmosphere with safe levels of
CO2 and other GHGs is protected by the ERA, that Respondents have a duty to
protect the atmosphere through both not acting contrary to that right and by
affirmatively protecting the atmosphere, and that Respondents have failed to
uphold their obligations under the ERA “would provide a legal predicate to the
success of [their mandamus] claims[,] but would otherwise have no independent
significance.” Stackhouse, 892 A.2d at 63. We have already determined that


                                        35
mandamus will not lie because Respondents do not have a mandatory duty to
conduct the requested studies, promulgate or implement the requested regulation,
or issue the requested executive orders. As there is also no indication that future
litigation between the parties will turn on the questions raised by Petitioners’
requests for declaratory relief, we decline to grant declaratory relief and sustain
Respondents’ POs alleging that declaratory relief in this context would have no
practical effect. (Exec. Branch POs ¶¶ 68, 156-57; PUC POs ¶¶ 124-27.)


V.     CONCLUSION
       For the foregoing reasons, we sustain, in part, Respondents’ POs alleging
that the mandamus will not lie because Petitioners lack a clear right to performance
of requested activities, and that declaratory relief would serve no practical purpose,
and dismiss the Petition for Review with prejudice.               We also conclude that
granting Petitioners leave to amend their Petition for a third time would be futile
given our legal conclusions herein.19



                                              ________________________________
                                              RENÉE COHN JUBELIRER, Judge



Senior Judge Colins concurs in the result only.




       19
         Because all claims have been dismissed, we need not address Respondents’ remaining
POs. Further, because we did not consider any of the information attached to Respondents’ POs,
we will not address Petitioners’ argument in their brief that the POs constitute speaking
demurrers.

                                             36
        IN THE COMMONWEALTH COURT OF PENNSYLVANIA


Ashley Funk; Otis Harrison, a minor,      :
by his guardian Amy Lee; Lilian           :
McIntyre, a minor, by her guardian        :
Jennifer McIntyre; Rekha                  :
Dhillon-Richardson, a minor, by her       :
guardian Jaskiran Dhillon; Austin         :
Fortino, a minor, by his guardian Ruth    :
Fortino; Darius Abrams, a minor, by       :
his guardian Elaine Abrams; Kaia          :
Luna Elinich, a minor, by her guardian    :
Arianne Elinich,                          :
                          Petitioners     :
                                          :
                     v.                   :   No. 467 M.D. 2015
                                          :
Tom Wolf, in his official capacity as     :
Governor of Pennsylvania;                 :
Pennsylvania Department of                :
Environmental Protection; John            :
Quigley, in his official capacity as      :
Secretary of the Pennsylvania             :
Department of Environmental               :
Protection; Pennsylvania Environmental :
Quality Board; John Quigley, in his       :
official capacity as Chairperson of the :
Environmental Quality Board;              :
Pennsylvania Public Utility               :
Commission; Gladys M. Brown, in           :
her official capacity as Chairperson of :
the Public Utility Commission;            :
Pennsylvania Department of                :
Conservation and Natural Resources;       :
Cindy Adams Dunn, in her official         :
capacity as Secretary of the              :
Pennsylvania Department of                :
Conservation and Natural Resources;       :
Pennsylvania Department of                :
Transportation; Leslie S. Richards, in :
her official capacity as Secretary of the :
Pennsylvania Department of                :
Transportation; Pennsylvania              :
Department of Agriculture; Russell C.     :
Redding, in his official capacity as      :
Secretary of the Department of            :
Agriculture,                              :
                           Respondents    :


                                     ORDER


         NOW, July 26, 2016, the Preliminary Objections (POs) of Respondents to
the Second Amended Petition for Review Seeking Declaratory and Mandamus
Relief      in the above-captioned matter are OVERRULED, in part, and
SUSTAINED, in part, as follows:


         (1) Respondents’ PO alleging that this Court lacks subject matter
         jurisdiction is OVERRULED;
         (2) Respondents’ POs alleging that Ashley Funk, et al. (Petitioners) lack
         standing to assert the claims in the Petition for Review are OVERRULED;
         (3) Respondents’ POs alleging that mandamus will not lie are
         SUSTAINED;
         (4) Respondents’ POs alleging that declaratory relief would amount to an
         advisory opinion are SUSTAINED.


The Second Amended Petition for Review Seeking Declaratory and Mandamus
Relief filed by Petitioners is dismissed with prejudice.



                                          ________________________________
                                          RENÉE COHN JUBELIRER, Judge
