Shirley v. Pa. Legislative Reference Bureau

Full title: JESSICA SHIRLEY, INTERIM ACTING SECRETARY OF THE DEPARTMENT OF…

Court: Supreme Court of Pennsylvania

Date published: Jul 18, 2024

85 MAP 2022 (Pa. Jul. 18, 2024)

Opinion

85 MAP 2022 87 MAP 2022 J-30B-2023 J-30C-2023

07-18-2024

JESSICA SHIRLEY, INTERIM ACTING SECRETARY OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION AND INTERIM ACTING CHAIRPERSON OF THE ENVIRONMENTAL QUALITY BOARD v. PENNSYLVANIA LEGISLATIVE REFERENCE BUREAU, VINCENT C. DELIBERATO, JR., DIRECTOR OF THE LEGISLATIVE REFERENCE BUREAU, AND AMY J. MENDELSOHN, DIRECTOR OF THE PENNSYLVANIA CODE AND BULLETIN APPEAL OF: CITIZENS FOR PENNSYLVANIA'S FUTURE, SIERRA CLUB, AND CLEAN AIR COUNCIL, Possible Intervenors JESSICA SHIRLEY, INTERIM ACTING SECRETARY OF THE DEPARTMENT OF ENVIRONMENTAL PROTECTION AND INTERIM ACTING CHAIRPERSON OF THE ENVIRONMENTAL QUALITY BOARD v. PENNSYLVANIA LEGISLATIVE REFERENCE BUREAU, VINCENT C. DELIBERATO, JR., DIRECTOR OF THELEGISLATIVE REFERENCE BUREAU, AND AMY J. MENDELSOHN, DIRECTOR OF THE PENNSYLVANIA CODE AND BULLETIN APPEAL OF: CITIZENS FOR PENNSYLVANIA'S FUTURE, SIERRA CLUB, AND CLEAN AIR COUNCIL, Possible Intervenors

DOUGHERTY JUSTICE.

ARGUED: May 24, 2023

Appeal from the Order of the Commonwealth Court at No. 41 MD 2022 dated June 28, 2022.

Appeal from the Order of the Commonwealth Court at No. 41 MD 2022 dated July 8, 2022.

TODD, C.J., DONOHUE, DOUGHERTY, WECHT, MUNDY, BROBSON, JJ.

OPINION

DOUGHERTY JUSTICE.

The Regional Greenhouse Gas Initiative (RGGI) is a cooperative effort among eleven eastern states of the United States to reduce carbon dioxide (CO2) emissions by electric power plants.¹ The Pennsylvania Department of Environmental Protection (DEP) developed a rulemaking package (RGGI Regulation) to effectuate Pennsylvania's membership in RGGI. The RGGI Regulation sparked substantial, ongoing litigation. Presently before us are two direct appeals from the Commonwealth Court. Specifically, three nonprofit environmental corporations, Citizens for Pennsylvania's Future, Clean Air Council, and Sierra Club (Nonprofits), appeal the denial of their application to intervene in this litigation. Nonprofits also appeal from the grant of a preliminary injunction of the RGGI Regulation. As explained below, we reverse the denial of intervention, and we dismiss as moot the appeal from the preliminary injunction.

1 The RGGI states are Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Pennsylvania, Rhode Island, and Vermont.

I. Background

Broadly speaking, RGGI applies to fossil-fuel-fired electric power plants located in RGGI states that have a capacity of 25 megawatts or greater. Under RGGI, regulated power plants within RGGI states must buy "allowances" in order to emit CO2. An allowance represents a limited authorization issued by a participating state to emit one short ton of CO2 from a regulated source. Regulated power plants purchase allowances at quarterly auctions or on the secondary market. Proceeds from the auction purchases go to the RGGI states. A regulated plant can use allowances issued by any RGGI state to demonstrate compliance with RGGI in any state. Together, the RGGI states have established a regional cap on CO2 emissions, which sets an overall limit on the total emissions from regulated power plants within the RGGI states. The regional emissions cap amount declines over time so that permissible CO2 emissions decrease in a planned and predictable way. For example, in 2016, the regional cap was 86,506,875 CO2 allowances; in 2017, the cap decreased to 84,344,203 allowances; and in 2018, it was reduced to 82,235,598 allowances. To join RGGI, a state must enact a CO2 Budget Trading Program based on RGGI's model rule.²

2 See generally Elements of RGGI, https://www.rggi.org/program-overview-anddesign/elements (last visited Mar. 15, 2024); About the Regional Greenhouse Gas Initiative, https://www.rggi.org/sites/default/files/Uploads/Fact%20Sheets/RGGI_101_ Factsheet.pdf (last visited Mar. 15, 2024).

In 2019, former Governor of Pennsylvania Tom Wolf issued an executive order directing DEP to develop a rulemaking package to join RGGI. Pursuant to the Governor's order, DEP developed the RGGI Regulation, which was adopted by the Environmental Quality Board (EQB), and then approved by the Independent Regulatory Review Commission. The Pennsylvania State Senate Environmental Resources and Energy Committee reported out of committee a concurrent resolution disapproving the RGGI Regulation, and the concurrent resolution was subsequently adopted by the full Senate. Thereafter, the Senate concurrent resolution was reported from the Pennsylvania State House Environmental Resources and Energy Committee to the full House chamber. DEP twice requested the Pennsylvania Legislative Reference Bureau (LRB) to publish the RGGI Regulation in the Pennsylvania Bulletin. See 45 Pa.C.S. §724(a) (requiring preliminary publication of regulations in Pennsylvania Bulletin). LRB, however, denied the requests. The full House adopted the concurrent resolution disapproving the RGGI Regulation, but on January 10, 2022, Governor Wolf vetoed it.

On February 3, 2022, then-Secretary of DEP and Chairman of EQB, Patrick McDonnell,³ filed a petition for review in the Commonwealth Court's original jurisdiction. The named respondents were LRB; Vincent C. DeLiberato, Jr., Director of LRB; and Amy Mendelsohn, Director of the Pennsylvania Code and Bulletin (LRB Respondents). The petition claimed the RGGI Regulation should be deemed approved by the General Assembly because the House did not adopt the concurrent resolution disapproving the RGGI Regulation within the deadlines set forth in Section 7(d) of the Regulatory Review Act (RRA).⁴ Accordingly, the petition sought a writ of mandamus compelling LRB to publish the RGGI Regulation in the Pennsylvania Bulletin. The petition also sought a declaratory judgment that LRB's prior refusal to publish the RGGI Regulation was unlawful, and the RGGI Regulation had been deemed approved by the General Assembly as a matter of law. In addition to its petition for review, DEP filed an application for expedited special and summary relief.

3 Interim Acting Secretary of DEP and Interim Acting Chairperson of EQB Jessica Shirley has been substituted as a party in this Court. See Pa.R.A.P. 502(c). For ease of discussion, we simply refer to this party as DEP.

4 Section 7(d) provides:

Upon receipt of the commission's order pursuant to subsection (c.1) or at the expiration of the commission's review period if the commission does not act on the regulation or does not deliver its order pursuant to subsection (c.1), one or both of the committees may, within 14 calendar days, report to the House of Representatives or Senate a concurrent resolution and notify the agency. During the 14-calendar-day period, the agency may not promulgate the final-form or final-omitted regulation. If, by the expiration of the 14-calendar-day period, neither committee reports a concurrent resolution, the committees shall be deemed to have approved the final-form or final-omitted regulation, and the agency may promulgate that regulation. If either committee reports a concurrent resolution before the expiration of the 14-day period, the Senate and the House of Representatives shall each have 30 calendar days or ten legislative days, whichever is longer, from the date on which the concurrent resolution has been reported, to adopt the concurrent resolution. If the General Assembly adopts the concurrent resolution by majority vote in both the Senate and the House of Representatives, the concurrent resolution shall be presented to the Governor in accordance with section 9 of Article III of the Constitution of Pennsylvania. If the Governor does not return the concurrent resolution to the General Assembly within ten calendar days after it is presented, the Governor shall be deemed to have approved the concurrent resolution. If the Governor vetoes the concurrent resolution, the General Assembly may override that veto by a two-thirds vote in each house. The Senate and the House of Representatives shall each have 30 calendar days or ten legislative days, whichever is longer, to override the veto. If the General Assembly does not adopt the concurrent resolution or override the veto in the time prescribed in this subsection, it shall be deemed to have approved the final-form or final-omitted regulation. Notice as to any final disposition of a concurrent resolution considered in accordance with this section shall be published in the Pennsylvania Bulletin. The bar on promulgation of the final-form or final-omitted regulation shall continue until that regulation has been approved or deemed approved in accordance with this subsection. If the General Assembly adopts the concurrent resolution and the Governor approves or is deemed to have approved the concurrent resolution or if the General Assembly overrides the Governor's veto of the concurrent resolution, the agency shall be barred from promulgating the final-form or final-omitted regulation. If the General Assembly does not adopt the concurrent resolution or if the Governor vetoes the concurrent resolution and the General Assembly does not override the Governor's veto, the agency may promulgate the final-form or final-omitted regulation. The General Assembly may, at its discretion, adopt a concurrent resolution disapproving the final-form or final-omitted regulation to indicate the intent of the General Assembly but permit the agency to promulgate that regulation.

71 P.S. §745.7(d).

On February 24, 2022, three members of the Pennsylvania House of Representatives ― then-Speaker Bryan Cutler, then-Majority Leader Kerry Benninghoff, and then-Chairman of the House Environmental Resources and Energy Committee Daryl Metcalfe (Representatives) ― filed an application for leave to intervene in DEP's lawsuit. Attached to their intervention application were preliminary objections and an answer in opposition to DEP's application for relief.

The next day, four members of the Pennsylvania Senate ― then-President Pro Tempore Jake Corman, then-Senate Majority Leader Kim Ward, Senate Environmental Resources and Energy Committee Chair Gene Yaw, and then-Senate Appropriations Committee Chair Pat Browne (Senators) ― also filed an application for leave to intervene. Attached to their intervention application was an answer with new matter and five counterclaims: (1) DEP violated Article II, Section 1 and Article III, Section 9 of the Pennsylvania Constitution,⁵ as well as Section 7(d) of the RRA, by sending the RGGI Regulation to LRB for publication before it was approved or deemed approved; (2) the RGGI Regulation exceeds DEP's authority under the Air Pollution Control Act (APCA), 35 P.S. §§4001-4015; (3) the RGGI Regulation violates the General Assembly's exclusive authority to enter into interstate compacts; (4) the RGGI Regulation violates the General Assembly's exclusive authority to impose taxes; and (5) the RGGI Regulation is void ab initio because DEP did not follow the public notice and comment procedures required by the Commonwealth Documents Law, 45 P.S. §§1201-1208, and the APCA. Also attached to Senators' intervention application was an answer to DEP's application for relief. Senators requested that the court accept these attached pleadings if they were granted permission to intervene. See Senators' Application for Leave to Intervene, 2/25/22 at ¶81.

5 Article II, Section 1 states: "The legislative power of this Commonwealth shall be vested in a General Assembly, which shall consist of a Senate and a House of Representatives." Pa. Const. art. II, §1. Article III, Section 9 provides: "Every order, resolution or vote, to which the concurrence of both Houses may be necessary, except on the questions of adjournment or termination or extension of a disaster emergency declaration as declared by an executive order or proclamation, or portion of a disaster emergency declaration as declared by an executive order or proclamation, shall be presented to the Governor and before it shall take effect be approved by him, or being disapproved, shall be repassed by two-thirds of both Houses according to the rules and limitations prescribed in case of a bill." Pa. Const. art. III, §9.

DEP filed written consents to intervention by Senators and Representatives. Accordingly, on March 3, 2022, the Commonwealth Court, per Judge Wojcik sitting as a single judge, granted the applications to intervene and accepted for filing the attached pleadings.

On March 25, 2022, Senators filed an application for a preliminary injunction of the RGGI Regulation. Representatives joined in the application. DEP filed a reply to new matter and answer to Senators' counterclaims. DEP also filed an answer to Senators' application for a preliminary injunction.

On April 4, 2022, the full Pennsylvania Senate held a vote to override Governor Wolf's veto of the General Assembly's concurrent resolution disapproving the RGGI Regulation but was two votes short of the required two-thirds majority. Thereafter, on April 20, 2022, producers of carbon-free energy, Constellation Energy Corporation and Constellation Energy Generation LLC (Constellation) filed an application to intervene in the ongoing litigation, to support DEP and the legality of the RGGI Regulation.

On April 25, 2022, Nonprofits filed an application to intervene in the litigation. Specifically, Nonprofits sought to defend the RGGI Regulation under the Environmental Rights Amendment (ERA).⁶ See Nonprofits' Application for Leave to Intervene, 4/25/22 at ¶¶6-7, 9, 56-58, 65.

6 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.

Also on April 25, 2022, in a separate action brought in the Commonwealth Court's original jurisdiction, a collection of nine corporate, nonprofit, and union entities, which we refer to collectively as Bowfin,⁷ filed a petition for review requesting the court declare the RGGI Regulation invalid and null and void, and enjoin DEP and EQB from implementing, administering, or enforcing it. Bowfin also separately applied for a preliminary injunction enjoining DEP and EQB from implementing, administering, or enforcing the RGGI Regulation during the pendency of Bowfin's action. Subsequently, the Nonprofits and two additional nonprofit organizations, Natural Resources Defense Council and Environmental Defense Fund, applied to intervene in the Bowfin case, as did Constellation.⁸

7 The specific entities are Bowfin Keycon Holdings, LLC; Chief Power Finance II, LLC; Chief Power Transfer Parent, LLC; Keycon Power Holdings, LLC; Genon Holdings, Inc.; Pennsylvania Coal Alliance; United Mine Workers of America; International Brotherhood of Electrical Workers; and International Brotherhood of Boilermakers, Iron Ship Builders, Blacksmiths, Forgers and Helpers.

8 For ease of discussion, the nonprofit organizations involved in the Bowfin case are referred to herein as Nonprofits, together with those in DEP's case.

Because the original case initiated by DEP and the later Bowfin case involved overlapping issues, the Commonwealth Court held a joint hearing for both cases, on May 10 and May 11, 2022, regarding the applications for preliminary injunction. The court permitted Nonprofits and Constellation to participate in the hearing subject to its future disposition of their pending applications to intervene. The court also held a joint hearing on June 24 and June 27, 2022, regarding the intervention applications filed in both cases. DEP did not raise arguments based on the ERA, but Nonprofits did. On June 28, 2022, the Commonwealth Court denied intervention to Constellation and Nonprofits in both cases.

The RGGI Regulation was finally codified in the July 2022 edition of the Pennsylvania Code Reporter, and then at 25 Pa. Code §§145.301-145.409. On July 8, 2022, the Commonwealth Court issued separate orders granting preliminary injunctions of the RGGI Regulation in this case and the Bowfin case. The court required Bowfin to file a bond in the amount of $100,000,000 to secure the injunction in its case.⁹

9 The court held Senators were not required to file a bond pursuant to Lewis v. City of Harrisburg, 631 A.2d 807, 812 (Pa. Cmwlth. 1993) (holding District Attorney was exempt from bond requirement for preliminary injunction under Pa.R.C.P. 1531(b)(1)).

The Commonwealth Court filed a joint opinion in support of its June 28, 2022 orders denying intervention. The court recognized a person "shall be permitted to intervene" in an action if "the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action." Ziadeh v. Pa. Legis. Ref. Bureau, 41 MD 2022 & 247 MD 2022, slip op. at 10 (Pa. Cmwlth., July 8, 2022) (unpublished memorandum) (Wojcik, J.), quoting Pa.R.C.P. 2327. The court further observed "an application for intervention may be refused" if "the interest of the petitioner is already adequately represented[.]" Id. at 11, quoting Pa.R.C.P. 2329. The court determined Nonprofits "failed to prove a legally enforceable interest or injury to . . . themselves." Id. at 19. The court also ruled, however, that Nonprofits "provided sufficient credible evidence to establish that they have a legally enforceable interest by virtue of injury to their members." Id. at 21.¹⁰ Nevertheless, the court decided Nonprofits' interests were adequately represented by DEP. The court explained that under the ERA and APCA, "the protection of our air resources is of the highest priority" for DEP. Id. at 22. It noted "[n]one of the [Nonprofits'] member witnesses could articulate any reason why the DEP is not adequately protecting their interests." Id. The court also dismissed as "speculative" Nonprofits' claims that DEP's settlement of the litigation could impact the use of auction proceeds or change the RGGI Regulation. Id. at 22-23. In any event, the court opined Nonprofits lack a legally enforceable interest in how the auction proceeds are spent "so long as they are used consistent with the APCA[,]" and any changes to the RGGI Regulation would have to undergo the rulemaking process once again, where Nonprofits would have a say in the proceedings. Id. at 23. Finally, the court determined the testimony of Nonprofits' witnesses concerning "poor experiences with government officials" was not indicative of DEP's lack of commitment to defending the RGGI Regulation. Id. Accordingly, the Commonwealth Court concluded Nonprofits were not entitled to intervene.

10 The court excluded the Natural Resources Defense Council from this ruling. See id. at 21 n.13 ("[W]e cannot conclude that the Natural Resources Defense Council presented evidence of an injury to one of its members."). The Natural Resources Defense Council applied to intervene in the Bowfin case only, and did not appeal the denial of intervention.

On July 20, 2022, Nonprofits filed the present appeals from the denial of intervention (85 MAP 2022) and the grant of the preliminary injunction (87 MAP 2022). While these appeals were pending in this Court, proceedings continued in the Commonwealth Court. Notably, on November 1, 2023, the Commonwealth Court held the RGGI Regulation "constitutes a tax that has been imposed by DEP and EQB in violation of the Pennsylvania Constitution." Ziadeh v. Pa. Legis. Ref. Bureau, 41 MD 2022, 2023 WL 7170737, at *5 (Pa. Cmwlth., Nov. 1, 2023) (unpublished memorandum); Bowfin Keycon Holding, LLC v. Pennsylvania Dep't of Env't Prot., 247 MD 2022, 2023 WL 7171547, at *4 (Pa. Cmwlth., Nov. 1, 2023) (unpublished memorandum). Accordingly, the Commonwealth Court issued orders in this case and the Bowfin case declaring the RGGI Regulation void and permanently enjoining DEP from enforcing it. On December 18, 2023, this Court ordered supplemental briefing regarding whether the permanent injunction rendered these appeals moot. The parties complied with our order, and we now address Nonprofits' appeals.¹¹

11 There have been numerous other related appeals to this Court: 79 MAP 2022 (DEP's appeal from preliminary injunction in this case) (discontinued); 80 MAP 2022 (DEP's appeal from preliminary injunction in Bowfin case) (dismissed as moot); 81 MAP 2022 (Constellation's appeal from denial of intervention in this case) (quashed); 82 MAP 2022 (Constellation's appeal from denial of intervention in Bowfin case) (quashed); 83 MAP 2022 (Constellation's appeal from preliminary injunction in this case) (quashed); 84 MAP 2022 (Constellation's appeal from preliminary injunction in Bowfin case) (quashed); 86 MAP 2022 (Nonprofits' appeal from denial of intervention in Bowfin case) (reversed via contemporaneously filed order); 88 MAP 2022 (Nonprofits' appeal from preliminary injunction in Bowfin case) (dismissed as moot); 89 MAP 2022 (Bowfin's appeal of amount of preliminary injunction bond in Bowfin case) (affirmed by equally divided Court); 106 MAP 2023 (DEP's appeal from permanent injunction in this case) (pending); 107 MAP 2023 (DEP's appeal from permanent injunction in Bowfin case) (pending); 110 MAP 2023 (Nonprofits' appeal from permanent injunction in this case) (pending); 111 MAP 2023 (Nonprofits' appeal from permanent injunction in Bowfin case) (pending); 113 MAP 2023 (Constellation's appeal from denial of intervention in this case) (pending); 114 MAP 2023 (Constellation's appeal from denial of intervention in Bowfin case) (pending); 115 MAP 2023 (Constellation's appeal from permanent injunction in this case) (pending); and 116 MAP 2023 (Constellation's appeal from permanent injunction in Bowfin case) (pending).

II. Intervention (85 MAP 2022)

First, we consider Nonprofits' appeal from the Commonwealth Court's order denying their application for leave to intervene in this case. Nonprofits insist the denial is an immediately appealable collateral order under Pa.R.A.P. 313(b). They assert the issue of intervention is separable from the underlying challenges to the RGGI Regulation. In addition, they maintain their right to intervene is too important to be denied review because they aim to protect their members' health, safety, property rights, and the constitutional right to clean air and preservation of the environment under the ERA. Nonprofits also argue their right will be irreparably lost if review is postponed because a party must appeal a denial of intervention within thirty days or lose the right to appeal the order entirely. See Nonprofits' Brief at 3-5.

As to the merits of the intervention question, Nonprofits argue their members have rights under the ERA, these rights are implicated by this case, and DEP is not adequately protecting these rights. They contend this Court has looked to trust law in addressing questions arising under the ERA, and trust law supports their intervention here. Specifically, they assert private trust law permits beneficiaries to intervene when their interests diverge from those of the trustee, charitable trust law allows for parties with special interests to enforce charitable trusts, and public trust law supports the rights of beneficiaries to intervene in litigation affecting the trust. Nonprofits insist DEP, in its role as trustee under the ERA, has an interest in narrowly interpreting its obligations under the ERA so as not to take on additional trustee duties, which can lead to a divergence in interests. They contend this divergence of interests would be evident if there is a settlement of this case. Indeed, they argue the present record reflects DEP is not adequately representing their interests. Nonprofits emphasize DEP's creation of set-aside accounts, the separate rulemaking petition submitted to DEP by Citizens for Pennsylvania's Future and the Clean Air Council urging adoption of an economy-wide greenhouse gas budget trading program, DEP's failure to present expert evidence regarding environmental harms at the preliminary injunction hearing, its failure to raise arguments under the ERA, and prior disagreements with how funds were disbursed from the Clean Air Fund. See Nonprofits' Brief at 16-39.

In response, Senators initially contend the order denying intervention to Nonprofits is interlocutory and unappealable, and therefore Nonprofits' appeal from it should be dismissed. They argue the order is not appealable as collateral because Nonprofits' interests are already adequately represented by DEP, and thus are not important enough to justify appellate review. Moreover, on the merits, Senators allege Nonprofits lack a legally enforceable interest permitting intervention. According to Senators, Nonprofits seek only to defend their preferred policy while simultaneously injecting political and policy considerations that are wholly inapposite to Senators' counterclaims concerning the separation of powers. They reject Nonprofits' position this case implicates the ERA, but submit that any purported interests under the ERA are indistinguishable from the interests of the public at large, and are already adequately represented by DEP. They contend Nonprofits have not shown their interests diverge from those of DEP, and they are in fact one and the same: to defend the RGGI Regulation. Senators insist the ERA and attendant trust principles do not create any divergence because the ERA is not implicated in the first place, the separate rulemaking and past disagreements do not reflect diverging interests in this case, the prospect of settlement is speculative, and the environmental evidence and arguments Nonprofits fault DEP for failing to present are entirely irrelevant to Senators' counterclaims. Senators allege as well that Nonprofits' own witnesses did not identify any inadequacy in DEP's defense of the RGGI Regulation. Instead, they assert, Nonprofits' witnesses merely recalled past disagreements regarding separate and irrelevant matters, or offered speculation concerning DEP's future defense of the RGGI Regulation. See Senators' Brief at 13-41.

Representatives likewise contend the order denying leave to intervene is not an appealable collateral order. In their view, Nonprofits lack a right too important to be denied review. Moreover, Representatives take the position Nonprofits lack a claim that will be irreparably lost if review is postponed to final judgment because they have not alleged any claims against them or Senators, nor have they raised any defenses to Senators' counterclaims. Regarding the substance of the intervention issue, Representatives maintain the Commonwealth Court was correct to conclude Nonprofits' interests are adequately represented by DEP. They argue Nonprofits posit three areas where their interests supposedly diverge from DEP: the distribution of auction proceeds, the separate rulemaking related to greenhouse gas emissions, and application of the ERA. However, Representatives submit DEP has not yet determined how the auction proceeds will be spent, any eventual spending plan will be subject to public input, and Nonprofits have no legally enforceable interest in how the money is spent so long as it is spent consistently with the APCA. In addition, they assert Nonprofits' interest in a completely different rulemaking is not sufficient to show that their interest in the RGGI Regulation is inadequately represented by DEP. Further, Representatives argue DEP is adequately representing Nonprofits' rights under the ERA since DEP is a trustee with a duty to protect the Commonwealth's public natural resources. They insist this appeal does not involve a question of harm under the ERA, but rather exclusively centers on DEP's disregard of separation of powers. See Representatives' Brief at 19-25.

In their reply brief, Nonprofits argue Senators and Representatives have waived any challenge to the Commonwealth Court's finding that Nonprofits, by virtue of injury to their members, have legally enforceable health and environmental interests, by failing to dispute it in their briefing. They claim they are not seeking intervention merely to defend the RGGI Regulation or to further a particular policy preference, but also to protect their rights under the ERA. Nonprofits assert the possibility that the rights of a putative intervenor are adequately represented by an existing party goes to the substance of the intervention question, not the preliminary jurisdictional issue of whether the collateral order doctrine is satisfied. They contend a party seeking appeal through the collateral order doctrine need not be a plaintiff raising a claim, but can be any party presenting an important question for resolution. Nonprofits submit this case implicates the ERA and also involves a separation of powers issue. See Nonprofits' Reply Brief at 2-16.

In Nonprofits' supplemental brief, they contend their appeal was not rendered moot by the permanent injunction. They claim this Court can still provide meaningful relief by allowing them to participate in DEP's appeal from the permanent injunction, as well as their own appeal from the permanent injunction. They argue an appeal of an order denying intervention is not rendered moot by the entry of final judgment in the underlying action pursuant to Atticks v. Lancaster Township Zoning Hearing Board, 915 A.2d 713, 716 (Pa. Cmwlth. 2007) ("Neighbors did not choose to pursue an appeal from the interlocutory order; instead, they waited until the trial court issued its final order and then appealed that part of the order denying their Petition. We reject the Atticks' argument that Neighbors' decision to postpone their appeal rendered that appeal moot."). Alternately, Nonprofits insist their appeal of the permanent injunction subsumes their challenge to the denial of intervention under the merger rule, which treats any prior interlocutory orders as merging into the final judgment. Finally, they submit a decision finding their appeal moot would violate their state constitutional rights to appeal and to procedural due process. See Nonprofits' Supplemental Brief at 2-8, 17-23.¹²

12 In addition to addressing mootness, Nonprofits argue their appeals at 110 MAP 2023 and 111 MAP 2023 should not be quashed, and that their present appeal at 85 MAP 2022, as well as their appeal at 86 MAP 2022, should be consolidated with the appeals at 106 MAP 2023, 107 MAP 2023, 110 MAP 2023, and 111 MAP 2023. See id. at 8-17.

Senators maintain the appeal is moot. They claim Pa.R.C.P. 2327 permits intervention in a pending action only, and the underlying action is no longer pending as a result of the Commonwealth Court's grant of a permanent injunction. Thus, they argue, any decision by this Court regarding the propriety of the denial of intervention would have no effect. They assert Atticks conflicts with In re Barnes Foundation, 871 A.2d 792 (Pa. 2005), and should not be followed. See Barnes, 871 A.2d at 794 ("[A] common pleas court's order denying intervention is one type of order which must be appealed within thirty days of its entry under Rule of Appellate Procedure 903, or not at all, precisely because the failure to attain intervenor status forecloses a later appeal."). Senators emphasize Nonprofits have not suggested any of the limited exceptions to the mootness doctrine apply. They contend dismissing their appeal as moot would not violate Nonprofits' rights because there is no constitutional right to appeal in the absence of a live case or controversy. They likewise dispute Nonprofits' claim of a due process violation, arguing a prerequisite to such a claim is the deprivation of a right, and Nonprofits have no right to a substantive decision on the intervention issue where there is no case or controversy. See Senators' Supplemental Brief at 8-14.

Representatives also take the position Nonprofits' appeal is moot. They submit there is no case or controversy in which Nonprofits have a stake in the outcome; Nonprofits thus lack a legally enforceable interest in the case. Additionally, Representatives claim a decree authorizing Nonprofits' participation could have no practical effect because Nonprofits did not raise any claim or defense under the ERA in the Commonwealth Court and instead mirrored the advocacy of DEP. As such, Representatives contend Nonprofits have no claim that is irreparably lost if the appeal is dismissed. They also note Nonprofits can raise their ERA arguments in amicus curiae briefs to this court. See Representatives' Supplemental Brief at 7-10.

A. Appealability

Preliminarily, we address whether the order denying intervention is appealable. See Commonwealth v. Kennedy, 876 A.2d 939, 943 (Pa. 2005) (holding appealability of order "is an issue of this Court's jurisdiction to entertain an appeal of such an order."). Whether an order is appealable "is a question of law." Rae v. Pa. Funeral Dirs. Ass'n, 977 A.2d 1121, 1126 n.8 (Pa. 2009). "As such, our standard of review is de novo and our scope of review is plenary." Id. Pennsylvania law "allow[s] for an appeal as of right from an order denying intervention in circumstances that meet the requirements of the collateral order doctrine as embodied in [Pa.R.A.P.] 313." Barnes, 871 A.2d at 794. Rule 313 provides:

(a) General Rule. An appeal may be taken as of right from a collateral order of a trial court or other government unit.

(b) Definition. A collateral order is an order separable from and collateral to the main cause of action where the right involved is too important to be denied review and the question presented is such that if review is postponed until final judgment in the case, the claim will be irreparably lost.

Pa.R.A.P. 313. Thus, a party may appeal as of right from an interlocutory order denying intervention "if the order satisfies the three requirements set forth in Rule 313(b) - separability, importance, and irreparability." Shearer v. Hafer, 177 A.3d 850, 858 (Pa. 2018). "[A]n order is separable from the main cause of action if it is entirely distinct from the underlying issue in the case and if it can be resolved without an analysis of the merits of the underlying dispute." K.C. v. L.A., 128 A.3d 774, 778 (Pa. 2015) (quotation marks and citation omitted). A right is important if "the interests that would potentially go unprotected without immediate appellate review . . . are significant relative to the efficiency interests sought to be advanced by adherence to the final judgment rule." Ben v. Schwartz, 729 A.2d 547, 552 (Pa. 1999) (citation omitted). "Further, the right[ ] involved must implicate interests deeply rooted in public policy [and] going beyond the particular litigation at hand." Shearer, 177 A.3d at 859 (quotation marks and citation omitted, alteration in original). Finally, the irreparability prong is met if the "claim . . . will be irreparably lost if appellate review is postponed until final judgment." Brooks v. Ewing Cole, Inc., 259 A.3d 359, 372 (Pa. 2021). "We construe the collateral order doctrine narrowly, and insist that each one of its three prongs be clearly present before collateral appellate review is allowed." Commonwealth v. Pownall, 278 A.3d 885, 903 (Pa. 2022) (quotation marks and citation omitted). "This approach avoids undue corrosion of the final order rule and prevents delay resulting from piecemeal review of trial court decisions." Id.

Here, each of the three requirements of the collateral order doctrine is established. First, the issue of whether Nonprofits are entitled to intervene in the litigation is distinct from, and can be decided without intruding into, the underlying dispute concerning the legality of the RGGI Regulation. As detailed below, the question of Nonprofits' intervention involves consideration of whether they are entitled to party status pursuant to Pa.R.C.P. 2327 and Pa.R.C.P. 2329. This analysis does not overlap with an assessment of the lawfulness of the RGGI Regulation. The first prong of the collateral order doctrine is met. See K.C., 128 A.3d at 779 (order denying petition to intervene in child custody matter separable from main cause of action).

Second, Nonprofits claim the right to intervene to protect, inter alia, environmental well-being. See Nonprofits' Brief at 4. This interest is significant and shared by the public at large. See Franklin Twp. v. Pa. Dep't of Env't Res., 452 A.2d 718, 720 (Pa. 1982) ("Aesthetic and environmental well-being are important aspects of the quality of life in our society[.]"). Hence, the importance prong is satisfied here.

Third, a party who is denied intervention and who satisfies the requirements of Rule 313 must appeal from the order denying intervention within thirty days of its entry or lose the right to appeal the order entirely. See K.C., 128 A.3d at 780; Barnes, 871 A.2d at 794. Consequently, Nonprofits' claim to intervention will be lost forever if they are not permitted to appeal from the decision denying intervention.

Appellees' arguments in opposition to application of the collateral order doctrine are unpersuasive. Whether DEP is adequately representing Nonprofits' interests is irrelevant to the importance inquiry. Simply because an existing party may satisfactorily represent a putative intervenor's interests does not mean those interests are not significant. Shared interests may nonetheless be important ones. Similarly, whether Nonprofits have raised unique claims or defenses against appellees is not relevant to the irreparability prong. The pertinent "claim" in this context is Nonprofits' claim to intervention, and this claim will be irretrievably lost if they are not permitted to appeal from the denial of intervention. See K.C., 128 A.3d at 780.

We are likewise not persuaded by the arguments raised in Justice Mundy's concurring and dissenting opinion (Mundy CDO). Regarding the importance prong, Justice Mundy emphasizes there are other important interests at stake in this litigation besides "the environment," such as "the availability of affordable electricity for low-income citizens and the presence of jobs in Pennsylvania's energy sector." Mundy CDO at 3. We don't disagree, but we fail to see how this undermines Nonprofits' satisfaction of the importance prong. Nonprofits' important environmental interests are not rendered any less so by the presence of other significant concerns. In addition, Justice Mundy "would . . . conclude there is no important right, deeply rooted in public policy and shared by the public at large, to have the government require that Pennsylvania's electricity producers participate in RGGI through the administrative regulation challenged in this matter." Id. at 4. However, the importance prong simply requires the appellant to have an important interest, not necessarily a meritorious claim to relief. In Ben, for instance, this Court held an interlocutory appeal from an order dismissing a motion to quash a subpoena on privilege grounds "met" "[t]he importance criterion" (as well as the two other prongs of the collateral order standard) but ultimately concluded there was "no merit to the . . . claim of privilege[.]" 729 A.2d at 552-53.

Regarding the irreparability prong, Justice Mundy insists the relevant "claim" under this prong is not Nonprofits' claim to intervention; rather, the "claim" under the third prong "substantially overlap[s]" with the "right" under the importance prong. Mundy CDO at 6. This is contrary to the basic rule of construction that when a rule or statute uses different words, it is presumed the words have different meanings. See, e.g., HTR Restaurants, Inc. v. Erie Insurance Exchange, 307 A.3d 49, 67 (Pa. 2023). If the "claim" under the third prong were synonymous with the "right" under the second prong, Rule 313 would not have used distinct words to refer to the same thing.¹³ Similarly, because the pertinent "claim" for purposes of the irreparability prong is the claim to intervention, not the underlying right or interests sought to be validated thereby, Justice Mundy's assertion Nonprofits' "environmental interests are fully vindicable through the legislative process" is inapt. Mundy CDO at 7. Any conceivable redress via the legislative process obviously cannot possibly include an order granting Nonprofits' claim to intervene in this case. Their claim to intervention, the sole focus of the analysis under the irreparability prong, is vindicable solely through the judicial process.

13 Neither of the cases cited by Justice Mundy ― Commonwealth v. Harris, 32 A.3d 243 (Pa. 2011), and Commonwealth v. Wright, 78 A.3d 1070 (Pa. 2013) ― holds the "right" under the second prong and the "claim" under the third prong are one and the same. See Mundy CDO at 6 n.2. On the contrary, these decisions reiterate the diverging language employed by the Rule itself. See Harris, 32 A.2d at 248 ("Pennsylvania Rule of Appellate Procedure 313(b) permits a party to take an immediate appeal as of right from an otherwise unappealable interlocutory order if the order meets three requirements: (1) the order must be separable from, and collateral to, the main cause of action; (2) the right involved must be too important to be denied review; and (3) the question presented must be such that if review is postponed until after final judgment, the claim will be irreparably lost.") (emphasis added); Wright, 78 A.3d at 1077 ("[A] non-final ruling is appealable where three conditions are satisfied: (1) it is separable from and collateral to the main cause of action; (2) the right involved is too important to be denied review; and (3) if review is postponed, the claim will be irreparably lost.") (emphasis added).

Justice Brobson's Concurring and Dissenting Opinion (Brobson CDO) also contends the "right" under prong two and the "claim" under prong three are coextensive. However, in contrast to Justice Mundy, who argues both prongs require consideration of the underlying interests at stake, Justice Brobson insists these separate requirements each involve the claim to intervention. See Brobson CDO at 3 ("[A]s with all orders denying intervention, the 'right involved' is the right, under Rule 2327 of the Pennsylvania Rules of Civil Procedure, to intervene."). This argument too contravenes the fundamental interpretive principle that the choice of distinct words in Rule 313 indicates distinct meanings. See, e.g., HTR Restaurants, 307 A.3d at 67. As each of the three elements of the collateral order doctrine is satisfied here, the Commonwealth Court's denial of intervention is appealable as of right under Rule 313, and we have jurisdiction over the appeal.

B. Mootness

We turn to the issue of mootness. Mootness is a prudential rather than jurisdictional concern, but "[t]his Court generally will not decide moot questions." Pap's A.M. v. City of Erie, 812 A.2d 591, 599 (Pa. 2002). "An issue before a court is moot when a determination is sought on a matter which, when rendered, cannot have any practical effect on the existing controversy." Yount v. Pa. Laws. Fund for Client Sec., 291 A.3d 349, 354 (Pa. 2023), quoting Commonwealth v. Holt, 273 A.3d 514, 549 (Pa. 2022); see also Burke ex rel. Burke v. Indep. Blue Cross, 103 A.3d 1267, 1271 (Pa. 2014) ("The claim of mootness . . . stands on the predicate that a subsequent change in circumstances has eliminated the controversy so that the court lacks the ability to issue a meaningful order, that is, an order that can have any practical effect."). "[A]n issue may become moot during the pendency of an appeal due to an intervening change in the facts of the case[.]" Pilchesky v. Lackawanna Cnty., 88 A.3d 954, 964 (Pa. 2014). We have recognized exceptions to the mootness doctrine "for issues that are of great public importance or are capable of repetition while evading review." Burke, 103 A.3d at 1271, quoting Commonwealth ex rel. Kearney v. Rambler, 32 A.3d 658, 663 (Pa. 2011). Also, we have indicated mootness may not preclude review "where a party will suffer some detriment without a court decision." Pilchesky, 88 A.3d at 964-65; accord Commonwealth, Dep't of Env't Prot. v. Cromwell Twp., Huntingdon Cnty., 32 A.3d 639, 652 (Pa. 2011); Pub. Def's Off. of Venango Cnty. v. Venango Cnty. Ct. of Common Pleas, 893 A.2d 1275, 1279-80 (Pa. 2006).

Presently, this Court's decision regarding Nonprofits' intervention can have a practical effect on the existing controversy. If we determine the Commonwealth Court abused its discretion in denying intervention, then Nonprofits should be parties with standing to pursue their appeal of the permanent injunction docketed at 110 MAP 2023. On the other hand, if we conclude Nonprofits were properly denied intervention, their appeal of the Commonwealth Court's final judgment would have to be quashed. "[T]he general rule is that only parties may appeal a decision." Barnes, 871 A.2d at 794; see Pa.R.A.P. 501 ("Except where the right of appeal is enlarged by statute, any party who is aggrieved by an appealable order, or a fiduciary whose estate or trust is so aggrieved, may appeal therefrom.") (emphasis added). A putative intervenor "unsuccessful in [its] effort to intervene in the [trial court] proceedings[ has] no greater rights than would be available to any other non-party[.]" Barnes, 871 A.2d at 794. Because our resolution of Nonprofits' appeal from the denial of their motion to intervene will impact ongoing litigation, the appeal is not moot. See Ctr. for Biological Diversity v. Bureau of Land Mgmt., 69 F.4th 588, 593 (9th Cir. 2023) ("Generally, if the underlying litigation is complete, an appeal of a denial of intervention is moot and must be dismissed. . . . But if we could permit the proposed intervenors to participate in ongoing district court proceedings or in an appeal of a district court's merits decision, that would amount to 'effectual relief,' so the intervention dispute would remain alive."); CVLR Performance Horses, Inc. v. Wynne, 792 F.3d 469, 475 (4th Cir. 2015) ("[D]ismissal of the underlying action does not automatically moot a preexisting appeal of the denial of a motion to intervene."); Alt. Rsch. and Dev. Found. v. Veneman, 262 F.3d 406, 410 (D.C. Cir. 2001) ("[O]ur jurisdiction to review th[e] denial [of intervention] is not affected by the fact that the district court denied intervention after the stipulated dismissal was entered; the dismissal does not render the appeal moot. . . . If this court were to conclude that [appellant] was entitled to intervene in the litigation, [appellant] would have standing to appeal the district court's denial of the Rule 60(b) motion attacking the stipulated dismissal, and we would review that Rule 60(b) denial.") (emphasis omitted); Purcell v. BankAtlantic Fin. Corp., 85 F.3d 1508, 1511 n.3 (11th Cir. 1996) (holding appeal from denial of intervention was not mooted by subsequent final judgment because "[i]f we conclude that [appellant] is entitled to intervene as of right, then [appellant] has standing as a party to appeal the district court's judgment based on the approved settlement agreement, and we would review that judgment.").

It is of course true, as Senators note, that the Commonwealth Court issued a final order permanently enjoining the RGGI Regulation. Yet, this does not mean there is no live controversy remaining. Nonprofits appealed the permanent injunction (110 MAP 2023), as did DEP (106 MAP 2023) and Constellation (115 MAP 2023). The litigation is not over, and we can still practically affect the case by resolving the intervention question. Cf. West Coast Seafood Processors Ass'n v. Nat. Res. Def. Council, Inc., 643 F.3d 701, 704 (9th Cir. 2011) ("[Appellant] appeals from the denial of its motion to intervene in a case that the district court has since decided, . . . from which neither party has appealed. Because the underlying litigation is over, we cannot grant [appellant] any 'effective relief' by allowing it to intervene now. The appeal is therefore moot."). Moreover, Representatives' contention Nonprofits lack a legally enforceable interest incorrectly conflates the mootness issue with the distinct question of intervention. See Representatives' Supplemental Brief at 7-8. A legally enforceable interest is a requirement for intervening in a civil case, not a component of the mootness inquiry. See Pa.R.C.P. 2327(4). Whether a claim will be "irreparably lost" in the absence of an appeal is likewise not a part of the mootness inquiry. See Representatives' Supplemental Brief at 9. Rather, this is an element of the collateral order doctrine. See Pa.R.A.P. 313(b). We are not convinced by appellees' arguments the appeal is moot.

C. Merits

Turning to the merits of the intervention issue, "[i]t is well established that a 'question of intervention is a matter within the sound discretion of the court below and unless there is a manifest abuse of such discretion, its exercise will not be interfered with on review.'" Wilson v. State Farm Mut. Auto. Ins. Co., 517 A.2d 944, 947 (Pa. 1986), quoting Darlington v. Reilly, 69 A.2d 84, 86 (Pa. 1949). Discretion is abused "if, in reaching a conclusion, [the] law is overridden or misapplied, or the judgment exercised is manifestly unreasonable or lacking in reason[.]" In re Deed of Tr. of Rose Hill Cemetery Ass'n Dated Jan. 14, 1960, 590 A.2d 1, 3 (Pa. 1991).

Unless our appellate rules prescribe otherwise, the practice relating to pleadings in cases arising in the Commonwealth Court's original jurisdiction pursuant to a petition for review are governed by the appropriate Rules of Civil Procedure. See Pa.R.A.P. 1517 ("Unless otherwise prescribed by these rules, the practice and procedure under this chapter relating to pleadings in original jurisdiction petition for review practice shall be in accordance with the appropriate Pennsylvania Rules of Civil Procedure, so far as they may be applied."); see also Pa.R.A.P. 106 ("Unless otherwise prescribed by these rules the practice and procedure in matters brought before an appellate court within its original jurisdiction shall be in accordance with the appropriate general rules applicable to practice and procedure in the courts of common pleas, so far as they may be applied."). Pursuant to Pa.R.C.P. 2327, "[a]t any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein" if:

(1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or

(2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or

(3) such person could have joined as an original party in the action or could have been joined therein; or

(4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.

Pa.R.C.P. 2327 (emphasis added).

Whether a potential party has a legally enforceable interest permitting intervention under Rule 2327(4) "turns on whether they satisfy our standing requirements." Markham v. Wolf, 136 A.3d 134, 140 (Pa. 2016); see also See Allegheny Reprod. Health Ctr. v. Pa. Dep't of Human Servs., 309 A.3d 808, 843 (Pa. 2024) ("To intervene, the prospective intervenor must first establish that she has standing."). "Generally, the doctrine of standing is an inquiry into whether the [potential party] has demonstrated aggrievement, by establishing a substantial, direct and immediate interest in the outcome of the litigation." Robinson Twp. v. Commonwealth, 83 A.3d 901, 917 (Pa. 2013) (quotation marks and citation omitted). "[A] 'substantial' interest is an interest in the outcome of the litigation which surpasses the common interest of all citizens in procuring obedience to the law[.]" Pa. Med. Soc'y v. Dep't of Pub. Welfare of Com., 39 A.3d 267, 278 (Pa. 2012). "[A] 'direct' interest requires a showing that the matter complained of caused harm to the party's interest." Id. An interest is "immediate" if that "causal connection" is not remote or speculative. Id. An association has standing as a representative of its members, even in the absence of injury to itself, if it establishes at least one of its members has standing individually. See Robinson, 83 A.3d at 922; Pa. Med. Soc'y, 39 A.3d at 278.

Under Pa.R.C.P. 2329, an application for intervention satisfying Rule 2327(4) or falling within one of the other classes enumerated in the rule "may be refused" if:

(1) the claim or defense of the petitioner is not in subordination to and in recognition of the propriety of the action; or

(2) the interest of the petitioner is already adequately represented; or

(3) the petitioner has unduly delayed in making application for intervention or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties.

Pa.R.C.P. 2329 (emphasis added). The word "adequately" in Rule 2329(2) means representation "to a satisfactory or acceptable extent."¹⁴ Thus, the mere fact an existing party may align with the putative intervenor's legally enforceable interests "is not determinative of whether such representation is adequate so as to support the refusal of intervention, where it is also shown that such party is not effectively representing the [intervenor's] interests." 7 Goodrich-Amram 2d §2329:7. In other words, "[t]he phrase 'adequately represented'" calls for "both an inquiry whether there is of record a [party] who technically represents the interests of the [intervenor] and also an inquiry whether such representatives are in fact performing their function of representation in a proper and efficient manner." Id. "Reading Rule 2329 in conjunction with Rule 2327, . . . the effect of Rule 2329 is that if the petitioner is a person coming within one of the classes described in Rule 2327, the allowance of intervention is not discretionary, but is mandatory, unless one of the grounds for refusal of intervention enumerated in Rule 2329 is present." In re Pa. Crime Comm'n, 309 A.2d 401, 408 n.11 (Pa. 1973) (quotation marks and citation omitted).

14 Adequately, Google Dictionary, https://www.google.com/search?q=adequately&rlz= 1C1CHBF_enUS941US941&oq=adequately&gs_lcrp=EgZjaHJvbWUyCQgAEEUYORiA BDIHCAEQABiABDIHCAIQABiABDIHCAMQABiABDIHCAQQABiABDIHCAUQABiABDI HCAYQABiABDIHCAcQABiABDIHCAgQABiABDIHCAkQABiABKgCCLACAQ&sourceid =chrome&ie=UTF-8 (last visited Apr. 2, 2024).

Presently, Nonprofits established "a substantial, direct and immediate interest in the outcome of the litigation" entitling them to intervention under Rule 2327(4). Robinson, 83 A.3d at 917. They presented the testimony of individual members regarding alleged harms they are suffering due to CO2 emissions from fossil-fuel-fired power plants. Specifically, Margaret Church testified she is a member of Citizens for Pennsylvania's Future and the Environmental Defense Fund who has lived in Bethlehem, Pennsylvania for over fifty years. Ms. Church claimed that in the last twenty-five years, the heat, rain, and flooding in her area have all gotten worse, changes she attributed to climate change. She alleged that as a "senior[,]" the hotter temperatures cause her to worry about dehydration and overheating. Accordingly, she monitors the weather and does not go outside to do yard work if it is too hot. She also monitors the air quality because if it is not good, she experiences breathing difficulties and is unable to do what she wants to do outside. She testified that on poor air quality days, she must stay inside, which leaves her feeling sluggish and depresses her mood. In addition to these personal impacts, Ms. Church expressed concern about the adverse effects of climate change on the lives of her children and grandchildren, especially her young grandson with asthma. See N.T. Intervention Hearing, 6/24/22 at 156-59, 161-68.

Echo Alford testified she is a member of the Clean Air Council who lives in Boothwyn, Pennsylvania, two miles from the Marcus Hook Energy Center, a fossil-fuel-fired power plant. She averred the plant causes poor air quality, which can exacerbate her asthma and allergies and prevent her from spending time outdoors. She checks the air quality to determine whether it is safe for her to go outside. She also stated the plant produces "strange" smells, which can cause stomach aches, dizziness, lightheadedness, and headaches. She noted too that her fourteen-year-old son likewise suffers from breathing issues, as well as frequent bloody noses. She asserted she is "most definitely" concerned about pollution from the plant, and her concerns are "often at the forefront of [her] mind[.]" See N.T. Intervention Hearing, 6/27/22 at 14-18, 21.

Laura Jacko testified she is a member of the Sierra Club who lives in Verona, Pennsylvania. Ms. Jacko recounted that her husband, like many people in their region, suffers greatly from asthma, and his flare-ups often coincide with poor air quality days. She stated that when her husband is ill with asthma, he is unable to be productive at work or to handle household responsibilities. He is also unable to join her and her four-year-old son in outdoor activities. She noted her son was born prematurely, which she believes may have been caused by the region's poor air quality, and also suffers from weak lungs, which could progress to asthma in the future. She suffers from eco-anxiety related to climate change and has sought care from a therapist to help her regulate her anxiety. See id. at 79-80, 85-88.

Nonprofits also adduced expert testimony concerning the environmental and health impacts of CO2 emissions and the RGGI Regulation. Dr. Raymond Najjar, a professor of oceanography at Pennsylvania State University, testified that CO2 emissions, by enhancing the greenhouse effect, are causing the Earth to warm, and Pennsylvania conditions correspond very closely to the global trend of warmer weather. He also explained the release of CO2 into the atmosphere causes people to become sick from heat-related problems and "makes people die[.]" Indeed, he referenced studies showing the emission of every 5,000 tons of CO2 leads to one death. Dr. Najjar opined Pennsylvania's implementation of the RGGI Regulation would reduce the amount of CO2 in the atmosphere and therefore reduce the amount of warming. See N.T. Preliminary Injunction Hearing, 5/11/22 at 291, 298-301, 305-06, 313.

In addition, Dr. Deborah Gentile, an allergy and immunology physician and researcher, testified air pollution triggers a variety of ailments, including asthma, cardiovascular disease, heart attacks, strokes, and congestive heart failure. She explained that children and older individuals are at higher risk for the adverse health effects of air pollution. She stated fossil-fuel-fired power plants emit air pollutants and lead to increased levels of PM2.5, a very small air pollutant that can lodge in individuals' breathing tubes and cause tissue damage, asthma and chronic obstructive pulmonary disease. Dr. Gentile opined: "The RGGI [Regulation] would . . . decrease the ambient air pollution that we're exposed to, and that would translate to decreased asthma attacks, decreased asthma deaths, decreased hospitalizations, increased life spans meaning decreased premature death." Similarly, she stated: "I think that [with] incorporation of the RGGI [Regulation] we are definitely going to see the reductions in these pollutants, and we're definitely going to see these improvements in health outcomes." Conversely, she expressed the view that if the RGGI Regulation is not implemented, "we aren't going to see those health benefits. We're putting people at risk of having these health risks, asthma attacks, hospitalizations, even death." See id. at 356, 360-61, 364-65, 369, 373-74.

This evidence sufficed to establish the individual members of Nonprofits - Church, Alford, and Jacko - each have standing. First, their interests in the outcome of the litigation are substantial. The members claim specific harms to their well-being, including hotter and wetter weather, poor air quality, breathing difficulties, forced time inside, exacerbated asthma symptoms, worsened allergies, odd smells, dizziness, lightheadedness, headaches, ill loved ones, and eco-anxiety. These specific interests in the outcome of the litigation go beyond the general interest shared by all Pennsylvanians in procuring obedience to the law. At stake for these individuals is not just fidelity to the law but the quality of their lives. Furthermore, their interests in the outcome of this injunction litigation are direct: an injunction deprives them of the RGGI Regulation's purported environmental and health benefits, and their ongoing injuries persist or worsen.

Finally, Nonprofits showed their members' interests in the outcome of this litigation are immediate. The causal connection between the RGGI Regulation and the benefits to the members is neither remote nor speculative for standing purposes. Dr. Gentile testified implementation of the RGGI Regulation would "definitely" cause improvements in the environment and better health outcomes. Id. at 374. Because the benefits of the RGGI Regulation are not purely conjectural, neither are the harms members will experience if these benefits are denied them. As members of Nonprofits have evidence-based standing individually, it follows Nonprofits have associational standing as representatives of their members. See Robinson, 83 A.3d at 922; Pa. Med. Soc'y, 39 A.3d at 278. Thus, Nonprofits perforce have legally enforceable interests entitling them to intervention under Rule 2327(4). See Allegheny Reprod. Health Ctr., 309 A.3d at 844; Markham, 136 A.3d at 141.

However, while the Commonwealth Court correctly determined Nonprofits satisfied Rule 2327(4), we hold it erred in concluding Nonprofits' interests are adequately represented by DEP, such that their intervention should be denied under Rule 2329(2). The lower court's analysis of the adequate representation question unreasonably omits the fact DEP has never once invoked the ERA in support of the RGGI Regulation. See Ziadeh, slip op. at 21-23 (Pa. Cmwlth., July 8, 2022). Although DEP raised other arguments in support of the RGGI Regulation, it made none whatsoever premised upon the ERA. Nonprofits sought intervention, inter alia, to fill this void and defend the RGGI Regulation under the ERA. See Nonprofits' Application for Leave to Intervene, 4/25/22 at ¶¶6-7, 9, 56-58, 65. Specifically, Nonprofits argued the ERA itself refutes Senators' claim the RGGI Regulation intrudes upon the General Assembly's exclusive authority to impose taxes. Nonprofits observed that, under Pennsylvania law, a tax is for the purpose of raising general revenue for the government, but under Pennsylvania Environmental Defense Foundation v. Commonwealth, 161 A.3d 911 (Pa. 2017), proceeds from the sale of public natural resources under the ERA must be devoted to the conservation and maintenance of those resources, and cannot be appropriated for general budgetary items. Hence, they maintained, this "Court's interpretation of the ERA . . . precludes the possibility that the [RGGI] auction proceeds could somehow be construed as a tax." Nonprofits' Brief in Response to Senate Intervenors' Application for Preliminary Injunction at 21-22 (attached as Exhibit A to application to intervene); see also Nonprofits' Brief at 46 ("RGGI auction proceeds are not general revenue and cannot, under the ERA, be treated as general revenue, making one of the hallmark characteristics of taxes inapplicable."); Nonprofits' Reply Brief at 16-20.

Nonprofits' ERA defense is hardly "irrelevant" to this case. Senators' Brief at 36. On the contrary, whatever its ultimate merit, this defense presents a salient and nonfrivolous argument regarding the central question in this litigation of whether the RGGI Regulation is an unconstitutional tax. The argument could benefit Nonprofits and DEP alike. Yet, DEP has never raised it. To be sure, as Justice Brobson correctly notes, not every failure on the part of an existing party to raise an argument favored by a potential intervenor necessarily constitutes inadequate representation warranting intervention. See Brobson CDO at 13. Otherwise, putative parties with legally enforceable interests would effectively be able to intervene at will since it is virtually always possible to articulate some new theory in support of a particular outcome. However, under the specific circumstances present here, involving the omission of an obvious, possibly meritorious, and potentially beneficial argument regarding the pivotal issue in the case, we hold adequate representation of Nonprofits by DEP, for purposes of Rule 2329(2), is lacking. See Ackerman v. North Huntingdon Twp., 228 A.2d 667, 668 (Pa. 1967) (Bielskis were not adequately represented by existing party Crestview where "Crestview's defense to the [ ] action was different from the one presented by the Bielskis"); see also Jones v. Prince George's Cnty., 348 F.3d 1014, 1019-20 (D.C. Cir. 2003) ("an existing party who is ineffectual, incompetent, or unwilling to raise claims or arguments that would benefit the putative intervenor may qualify as an inadequate representative in some cases"); Daggert v. Comm'n on Governmental Ethics & Election Pracs., 172 F.3d 104, 112 (1st Cir. 1999) ("Of course, the use of different arguments as a matter of litigation judgment is not inadequate representation per se[,] . . . [b]ut one can imagine cases where . . . a refusal to present obvious arguments could be so extreme as to justify a finding that representation by the existing party was inadequate.") (citation omitted); Michigan State AFL-CIO v. Miller, 103 F.3d 1240, 1247 (6th Cir. 1997) ("[I]t may be enough to show [inadequate representation] that the existing party who purports to seek the same outcome will not make all of the prospective intervenor's arguments.").¹⁵

15 To be clear, a pertinent argument is not necessarily a winning one. Nothing we say here should be construed to decide the ultimate question of the legality of the RGGI Regulation, which we need not (and accordingly do not) reach in these appeals.

Senators' arguments that Nonprofits' lack legally enforceable interests miss the mark.¹⁶ Senators focus on disputing whether Nonprofits themselves have legally enforceable interests. See Senators' Brief at 20-31. However, standing suffices to prove a legally enforceable interest, see Markham, 136 A.3d at 141, and as stated above, an association's standing may be premised on the standing of at least one of its individual members, even if it lacks standing itself. See Robinson, 83 A.3d at 922; Pennsylvania Med. Soc'y, 39 A.3d at 278. Accordingly, Nonprofits come within Rule 2327(4), irrespective of whether they also have legally enforceable interests in their own right.

16 Representatives do not appear to dispute Nonprofits have legally enforceable interests under Rule 2327(4). See Representatives' Brief at 19 ("[S]ome of the interests asserted by the Nonprofits are not legally enforceable[.]") (emphasis added); see also id. at 20 ("[T]he Commonwealth Court correctly concluded that, to the extent Nonprofits asserted a legally enforceable interest under Rule 2327, those interests were adequately represented by DEP[.]").

Justice Mundy maintains our "approach to intervention in this matter is difficult to reconcile with our prior cases," namely Crossey v. Boockvar, 108 MM 2020, and Allegheny Reproductive Health Center v. DHS, 309 A.3d 808 (Pa. 2024). See Mundy CDO at 12-15. However, Crossey involved a per curiam order, which granted intervenor status to Republican legislators but denied intervention to Republican organizations.¹⁷ As such, it carries no precedential weight. See In re Avery, 286 A.3d 1217, 1228 (Pa. 2022) ("highlighting the well-settled, general principle that this Court's per curiam orders carry no precedential value"). Moreover, Allegheny involved the distinct question of "individual legislator intervention" and therefore is distinguishable from this case involving the intervention of nonprofit environmental organizations. Allegheny, 309 A.3d at 844. Indeed, Justice Mundy herself notes "legislative standing . . . is its own topic[.]" Mundy CDO at 12.

17 See Crossey, 108 MM 2020, Per Curiam Order (filed Aug. 21, 2020) ("AND NOW, this 21st day of August, 2020, the petitions of Proposed Intervenors President Pro Tempore Joseph B. Scarnati, III, and Majority Leader of the State Senate Jake Corman; Speaker of the House of Representatives Mike Turzai and Majority Leader of the House Bryan Cutler (subsequently substituted by Speaker of the House of Representatives Bryan Cutler and Majority Leader of the House Kerry Benninghoff) to intervene in this matter are GRANTED; the petitions of Proposed Intervenors Republican Party of Pennsylvania, the Republican National Committee, and the National Republican Congressional Committee are DENIED, without prejudice to their ability to file briefs as amicus curiae pursuant to Pa.R.A.P. 531.").

Justice Brobson believes "Nonprofits have no right to the RGGI Regulation[.]" Brobson CDO at 11. But, whether there is a "right to the RGGI Regulation," i.e., whether the RGGI Regulation must be accorded legal effect, is the ultimate issue in this case. Nonprofits do not have to demonstrate their entitlement to relief on the merits in order to establish their standing to intervene. In addition, Justice Brobson contends there are no harms to Nonprofits' members "because the absence of the RGGI Regulation is simply the status quo." On the contrary, the status quo is that the RGGI Regulation is codified in the Pennsylvania Code. See 25 Pa. Code §§145.301-145.409. Although currently subject to an injunction, the RGGI Regulation is not a mere "proposed . . . regulation[]" absent from our present laws. Brobson CDO at 11. Justice Brobson also insists our "view on standing essentially takes the position that an individual or organization that has an interest in the subject matter has standing to intervene in litigation seeking to challenge any proposed regulation or legislation that advances that interest." Id. at 12. But this is not so. As we specified above and now reiterate to forestall any possible confusion, standing requires more than a mere "policy or advocacy interest[]" in the outcome of the litigation, Brobson CDO at 8; the interest must be substantial, direct, and immediate. See Robinson, 83 A.3d at 917. Nonprofits' significant evidentiary presentation demonstrating environmental, health, and quality-of-life harms to their individual members established such an interest. Finally, regarding adequate representation, Justice Brobson claims "DEP may have had legitimate reasons not to advance [the ERA] argument[,]" and, in any case, Nonprofits can raise the argument as "amicus." Brobson CDO at 13. However, we find it telling that DEP has never actually offered a rationale for ignoring the ERA. Moreover, "[a]n amicus curiae is not a party and cannot raise issues that have not been preserved by the parties." Commonwealth v. Cotto, 753 A.2d 217, 224 n.6 (Pa. 2000). Accordingly, we reverse the Commonwealth Court's decision denying Nonprofits' application to intervene.¹⁸

18 At this juncture, when there are no longer pending proceedings in the Commonwealth Court in which to intervene, remand to the Commonwealth Court is not appropriate, as Nonprofits appear to acknowledge. See Nonprofits' Supplemental Brief at 3 ("If this Court determines that the Commonwealth Court erred in denying Nonprofit Intervenors' application for intervention, then Nonprofit Intervenors will immediately be able to participate as parties in the pending merits appeals of the November 1 [o]rders.").

III. Preliminary Injunction (87 MAP 2022)

Nonprofits also separately appeal the Commonwealth Court's grant of the preliminary injunction of the RGGI Regulation. However, the Commonwealth Court's November 1, 2023 permanent injunction of the RGGI Regulation superseded the preliminary injunction, rendering any appeal from the preliminary injunction moot. See Grupo Mexicano de Desarrollo S.A. v. All. Bond Fund, Inc., 527 U.S. 308, 314 (1999) ("Generally, an appeal from the grant of a preliminary injunction becomes moot when the trial court enters a permanent injunction, because the former merges into the latter."); PG Publ'g Co., Inc. v. Pittsburgh Typographical Union #7 (CWA Local 14827), 304 A.3d 1227, 1231 n.1 (Pa. Super. 2023) (holding that because trial court granted permanent injunction "any claims arising from the issuance of the preliminary injunction are moot"); PA Energy Vision, LLC v. South Avis Realty, Inc., 120 A.3d 1008, 1012 (Pa. Super. 2015) ("South Avis argues the trial court erred in granting a preliminary injunction. This issue, however, is now moot because the trial court issued a final, permanent injunction."); Sasinoski v. Cannon, 696 A.2d 267, 270 (Pa. Cmwlth. 1997) ("[A] preliminary injunction is superseded by a decision on the merits and terminates upon the issuance of the permanent injunction."); Izenson v. Izenson, 418 A.2d 445, 446 (Pa. Super. 1980) ("Where a preliminary injunction is in force, the issuance of a permanent injunction terminates the preliminary injunction. . . . Thus, we cannot reach appellant's contention that the preliminary injunction was improperly issued because that injunction is no longer in effect.") (citation and footnote omitted). Indeed, Nonprofits "agree that their appeal of the preliminary injunction at 87 MAP 2022 is moot." Nonprofits' Supplemental Brief at 2.

None of the exceptions to the mootness doctrine applies. Because the preliminary injunction of the RGGI Regulation has been supplanted by the permanent injunction and is no longer in effect, the preliminary order does not carry great public importance, nor does it risk ongoing detriment to any party. Moreover, although the grant of preliminary injunctive relief in this particular case has evaded review, this is not the norm and preliminary injunctions are not likely to avoid review as a general matter. This Court has repeatedly had the opportunity to review the propriety of preliminary injunctions. See, e.g., Marcellus Shale Coal. v. Dep't of Env't Prot., 185 A.3d 985 (Pa. 2018); Brayman Const. Corp. v. Com., Dep't of Transp., 13 A.3d 925 (Pa. 2011); Fischer v. Dep't of Pub. Welfare, 439 A.2d 1172 (Pa. 1982); Shanaman v. Yellow Cab Co. of Phila., 421 A.2d 664 (Pa. 1980); New Castle Orthopedic Assocs. v. Burns, 392 A.2d 1383 (Pa. 1978). We decline to consider Nonprofits' admittedly moot appeal from the defunct preliminary injunction.

IV. Mandate

For the foregoing reasons, in the appeal docketed at 85 MAP 2022, the order of the Commonwealth Court is reversed, and the appeal docketed at 87 MAP 2022 is dismissed as moot.

Chief Justice Todd and Justices Donohue and Wecht join the opinion.

Justice Donohue files a concurring opinion in which Chief Justice Todd joins.

Justice Mundy files a concurring and dissenting opinion.

Justice Brobson files a concurring and dissenting opinion.

CONCURRING OPINION

DONOHUE JUSTICE.

I join the Majority in full and write only to speak to the role the Nonprofits' assertion of the Environmental Rights Amendment ("ERA"), found in Article I, Section 27 of the Pennsylvania Constitution, plays in resolving the intervention question before the Court. 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 ERA "establishes a public trust, pursuant to which the natural resources are the corpus of the trust, the Commonwealth is the trustee, and the people are the named beneficiaries." Pa. Env't Def. Found. v. Commonwealth, 161 A.3d 911, 931-32 (Pa. 2017). Nonprofits' members, as residents of this Commonwealth, are beneficiaries under this trust. See Application for Leave to Intervene, 4/25/2022, ¶¶ 40-42, 58. The ERA imposes upon all agencies and entities of our government, in their role as trustee, the duty to prohibit the degradation, diminution, and depletion of the public natural resources, as well as the duty to act affirmatively through legislative action to protect the environment. Id. at 933. This Court has previously established that the ERA trust is governed by the principles applicable to private trusts. Id. at 932-33; see also Pa. Env't Def. Found. v. Commonwealth, 255 A.3d 289, 308 n.12 (Pa. 2021).

Fundamentally, a trust is a "relation between" persons, wherein one (the trustee) holds property for the benefit of others (the beneficiaries). In re Passarelli Fam. Tr., 242 A.3d 1257, 1269 (Pa. 2020). While a trustee holds legal title to the property of which the trust is comprised, the beneficiaries hold an equitable interest in the trust property. Jones v. Jones, 25 A.2d 327, 329 (Pa. 1942) (holding that a beneficiary has equitable in rem interest in trust property). For instance, an income beneficiary possesses an equitable right in the trust property that generates the income, although she has no legal right to that property at all. Tr. Under Will of Augustus T. Ashton, 269 A.3d 81, 91 (Pa. 2021).

This equitable interest is legally enforceable. We long ago held that "in addition to rights against the trustee, the beneficiary also has rights in rem, an actual property interest in the subject-matter of the trust, an equitable ownership of the trust res." Jones, 25 A.2d at 329. The equitable interest in the trust res entitles a beneficiary to enforce the trust, to have a breach of trust enjoined, and to obtain redress for a breach of trust. Id.; see also Commonwealth v. Stewart, 12 A.2d 444, 447 (Pa. 1940), aff'd sub nom. Stewart v. Commonwealth, 312 U.S. 649 (1941) ("By virtue of th[e equitable interest in the trust property] he was entitled to enforce the trust, to have a breach of trust enjoined and to obtain redress in case of breach."). We reaffirmed this principle more recently in Trust Under Will of Augustus T. Ashton, 269 A.3d 81, 91 (Pa. 2021) (explaining that beneficiaries have equitable interest in "entire trust res" and that interest allows beneficiaries to enforce the trust in addition to rights against a trustee).

Pursuant to their status as beneficiaries of the public trust established by the ERA, Nonprofits' members possess a legally enforceable interest in the trust res: the natural resources of our Commonwealth. In my view, this legally enforceable interest in the existing natural resources which, according to Nonprofits, stand to be altered, if not diminished or destroyed, as a result of the efforts to enjoin the RGGI Regulation, suffices to establish a right to intervene pursuant to Pennsylvania Rule of Civil Procedure 2327(4).¹ See Citimortgage, Inc. v. Comini, 184 A.3d 996, 998 (Pa. Super. 2018) (holding that proposed intervenors' right to first refusal was "an interest legally enforceable pursuant to standard principles of contract construction" thereby establishing a right to intervene pursuant to Pa.R.C.P. 2327(4)). Nonetheless, as explained by the Majority, even when a petitioner establishes a legally enforceable interest that would permit intervention, a court may deny intervention if the petitioner's interest is already adequately represented. Pa.R.C.P. 2329(2). Here, where DEP has failed to assert the ERA and its obligations thereunder in defense of the RGGI regulations, it is difficult, if not impossible, to conclude that it is representing the beneficiaries' interests at all, let alone to a standard that could be called "adequate."

1 This conclusion is in harmony with then-Judge Brobson's pronouncement that "[t]he [ERA's] protections may be enforced by citizens bringing suit in the appropriate forum, including the courts." Feudale v. Aqua Pa., Inc., 122 A.3d 462, 468 (Pa. Commw. 2015), aff'd, 135 A.3d 580 (Pa. 2016).

Justice Brobson concludes that Nonprofits have failed to establish a legally enforceable interest in this litigation that would warrant their intervention pursuant to Rule 2327(4). Although he acknowledges that Nonprofits pursued intervention to assert their rights as beneficiaries under the ERA, Justice Brobson ignores the import of this status, resting his conclusion that Nonprofits lack a legally enforceable interest on his view that they seek only to advance policies that align with their interests. Concurring & Dissenting Op. at 11-12 (Brobson, J). This non sequitur misses the significance of beneficiary status, as it is by virtue of the trustee/beneficiary relationship that Nonprofits (by way of their members' rights)² possess a legally enforceable interest that provides the basis for intervention. See Ashton, 260 A.3d 81, 91 (Pa. 2021) (explaining that beneficiaries have equitable interests in "entire trust res" and that interest allows beneficiaries to enforce the trust to obtain redress, in addition to in personam rights against a trustee); Jones, 25 A.2d at 329; Commonwealth v. Stewart, 12 A.2d 444, 446-47 (Pa. 1940). Whether Nonprofits have preferred environmental policies plays no part in determining whether they may intervene in this litigation as beneficiaries seeking to vindicate the rights granted to them under the trust.

2 The Majority explains that Nonprofits have associational standing as representatives of their members. Majority Opinion at 30 (citing Robinson Twp. v. Commonwealth, 83 A.3d 901, 922 (Pa. 2013)).

Chief Justice Todd joins this concurring opinion.

CONCURRING AND DISSENTING OPINION

MUNDY JUSTICE

I agree with the majority that this appeal is moot to the extent it seeks review of a preliminary injunction that has been superseded by a permanent injunction. I respectfully dissent, however, from the majority's holding that the Commonwealth Court abused its discretion in denying Appellants' application to intervene.

I. Appealability

Initially, I offer a few thoughts on the immediate appealability of an order denying intervention, and how they apply to this case. As the majority develops, for an interlocutory trial court order to be immediately appealable under the collateral-order doctrine, it must satisfy three elements: separability, importance, and irreparable loss. Thus, it must be true that (1) the order is separable from the main cause of action, (2) the right involved is too important to be denied review, and (3) the claim will be lost if review is postponed until final judgment in the case. See Majority Op. at 17 (quoting Pa.R.A.P. 313(b)). As the majority additionally recognizes, this standard is to be applied "narrowly" because the collateral-order doctrine comprises an exception to the final-order rule with its aim to prevent delay stemming from piecemeal review of interlocutory trial court orders. See id. at 17. Even under a narrow construction, it seems to me prong (1) will generally be true of an intervention-denial order. Such an order would appear almost always to be separate from the main cause of action. With that said, I believe the majority has not applied prongs (2) and (3) narrowly.

First, as for prong (2), the importance prong, the majority's analysis is limited to stating that Appellants wish to intervene to protect their "environmental well-being," and those interests are shared by the public. See Majority Op. at 18. I believe this description glosses over some important details. The issues before the Commonwealth Court were whether the RGGI regulation effectuated an unconstitutional tax in violation of the separation of powers principle, whether it was ultra vires under the Air Pollution Control Act, and whether DEP complied with the Commonwealth Documents Law.¹ There is little doubt the challenged regulation amounts to a major new direction in energy policy for Pennsylvania that has the potential to affect, not only the environment, but the availability of affordable electricity for low-income citizens and the presence of jobs in Pennsylvania's energy sector. It thus involves an examination of social policy issues and a balancing of competing goals and factors, which is ordinarily the task of the General Assembly. See Rice v. Diocese of Altoona-Johnstown, 255 A.3d 237, 256 (Pa. 2021) (citing Lance v. Wyeth, 85 A.3d 434, 454 n.26 (Pa. 2014)). Under these circumstances, the interests of Pennsylvania citizens affected by the claims before the Commonwealth Court include, most centrally, their interest in having new taxes levied by the General Assembly and not by an administrative agency - and, more generally, their interest in having major energy policy decisions made in compliance with statutory law, or alternatively, made by their elected representatives rather than an entity whose members they cannot hold accountable at the ballot box.

1 See Ziadeh v. Pa. LRB, Nos. 41 M.D. 2022, slip op. at at 8-9 (Pa. Cmwlth. July 8, 2022) (summarizing the Senate Intervenors' five counterclaims). The counterclaims are set forth in McDonnell v. Pa. LRB, No. 41 M.D. 2022, Intervenor Respondents' Answer with New Matter & Counterclaims at ¶¶ 153-228 (Pa. Cmwlth. filed March 3, 2022). The Senate Intervenors claimed the regulation was, in effect, a tax because the auction proceeds would generate $443 million, nearly tripling DEP's entire budget, and only six percent of those proceeds would be consumed by the cost of administering and overseeing the CO2 trading program. The Commonwealth Court eventually cited these factors in crediting the Senate Intervenors' position and permanently enjoining the Secretary from enforcing the regulation's provisions. See Ziadeh v. Pa. LRB, No. 41 M.D. 2022, slip op. at 11-12, 2023 WL 7170737, at *5-*6 (Pa. Cmwlth. Nov. 1, 2023).

Appellants clearly agree with the specific policy goals underlying Pennsylvania's RGGI participation, but it seems attenuated to say they accordingly have an enforceable "right" that is too important to be denied review to have such regulations be enacted by an administrative agency instead of the legislative body. The majority avoids such difficulties by simply taking Appellants' word for it that their right should be characterized solely in terms of their environmental objectives without any reference to the issues raised before the trial court, and that those goals are shared by the public at large and go beyond the litigation at hand. To my mind this departs from the "narrow" approach we have endorsed for collateral review, and our requirement that every element of the collateral order doctrine be "clearly present before collateral appellate review is allowed," so as to avoid "undue corrosion of the final order rule." Shearer v. Hafer, 177 A.3d 850, 858 (Pa. 2018) (internal quotation marks and citations omitted). I would, instead, critically examine Appellants' contention, as we have done relative to other litigants, see, e.g., Geniviva v. Frisk, 725 A.2d 1209, 1213-14 (Pa. 1999); Shearer, 177 A.3d at 859, and conclude there is no important right, deeply rooted in public policy and shared by the public at large, to have the government require that Pennsylvania's electricity producers participate in RGGI through the administrative regulation challenged in this matter.

Relying on In re Barnes Foundation, 871 A.2d 792 (Pa. 2005), and K.C. v. L.A., 128 A.3d 774 (Pa. 2015), the majority also concludes prong (3) is satisfied here because if the order is not reviewed right now, Appellants' "right to intervene" will be lost forever. Majority Op. at 18 (citing K.C., 128 A.3d at 780; Barnes, 871 A.2d at 794). This raises some questions. Should Barnes (and derivatively, K.C.) be read to encompass such a "lost forever" precept? Even if it should, does that mean the claim at issue will be lost forever every time intervention is denied, if such denial is not made immediately appealable? And while the majority does all of this in an attempt to assess jurisdiction first, followed by merits review, is it really possible for an appellate court to evaluate jurisdiction to entertain an immediate appeal of an intervention-denial order without at least some consideration of the merits of that order?

To proffer brief answers to these questions, it seems to me, first, that Barnes does not rule out the possibility that a party whose interlocutory appeal of an intervention-denial order was quashed might try a second time to appeal that order after the trial court issues a final order. Barnes indicated that an intervention-denial order "must be appealed within 30 days of its entry . . ., or not at all," Barnes, 871 A.2d at 794, but it said nothing about what would happen if the person did appeal within 30 days and the appeal was quashed. One possibility is for this Court to construe Barnes to allow merits review after a final trial court order issues, so long as the party preserved its appellate rights by at least trying to take an appeal within 30 days of the intervention-denial order. Such allowance would arguably prevent all such orders from being deemed collateral orders on the grounds that, then, prong (3) of the collateral order doctrine would never be met. The benefit would be avoiding piecemeal review and the delay it entails, but such a rule could necessitate a do-over of the trial level proceedings if it turns out intervention was improperly denied, thereby rendering the first time through a mere dress rehearsal and causing even greater delay. See generally Jackson v. Hendrick, 446 A.2d 226, 230 (Pa. 1982) (noting belated intervention prejudices both the prevailing party and the adjudicatory process). Although this precise issue is not raised in the instant appeal, it will have to be addressed in another phase of this litigation. See, e.g., Shirley v. Pa. Legislative Reference Bureau, 113 MAP 2023, Order (Pa. June 7, 2024) (deferring jurisdictional review of Constellation Energy's appeal of an intervention-denial order to the merits briefing stage, where Constellation had previously tried to appeal such order under the collateral order doctrine, but that appeal was quashed).

Here, though, the majority's cursory treatment seems to go to the other extreme and suggest prong (3) is always met in the intervention-denial context. This would mean that, as long as the importance prong is satisfied, appellate jurisdiction is always secure. The majority offers a two-sentence analysis of this topic as follows:

Third, a party who is denied intervention and who satisfies the requirements of Rule 313 must appeal from the order denying intervention within thirty days of its entry or lose the right to appeal the order entirely. Consequently, Nonprofits' right to intervene will be lost forever if they are not permitted to appeal from the decision denying intervention.

Majority Op. at 18 (citations omitted). The majority reaches this conclusion by framing the "claim" under prong (3) as the "right to intervene." I find this framing in tension with other cases in which the "right" under prong (2) and the "claim" under prong (3) have been viewed as substantially overlapping.² Further, I am not as certain as the majority that in an intervention-denial setting, prong (3) is always met. For example, even if the ability to intervene will be lost forever, there may be other ways the party can vindicate its asserted rights. See, e.g., Mortg. Elec. Registration Sys. v. Malehorn, 16 A.3d 1138, 1143 (Pa. Super. 2011) (finding prong (3) unmet where the disappointed intervenor had other forums in which she could protect her property rights). This would mean the claim will not be "irreparably lost" for Rule 313(b) purposes.

2 See, e.g., Commonwealth v. Harris, 32 A.3d 243, 249 (Pa. 2011) (important right not to disclose material covered by psychologist-client privilege would be destroyed if review of discovery order awaited appeal after final judgment); see also Commonwealth v. Wright, 78 A.3d 1070, 1078 (Pa. 2013) (finding the importance of the right to waive counsel and act pro se under prong (2) overlapped with the irreparability inquiry under prong (3) because an erroneous denial of that right would harm society's interests in the finality of criminal proceedings that were considered in connection with the importance prong).

Here, it seems to me Appellants' environmental interests are fully vindicable through the legislative process in which they face no barriers to participation. In this sense, the present controversy is qualitatively different from one in which the government has affirmatively acted in a way that is alleged to infringe upon the challenger's constitutional rights. In that type of setting, it would be unsatisfactory to relegate the challenger to the legislative process: Pennsylvania's courts stand open to protect its citizens' civil rights from governmental overreach. But in this matter the government has taken no action that is claimed to violate Appellants' rights. To the contrary, Appellants favor the action the government has taken; they seek to intervene only so they can be another voice in defending the government from the present legal challenge - all while the government is already "vigorously defending" its own actions. Ziadeh v. Pa. LRB, Nos. 41 & 247 M.D. 2022, slip op. at 20 (Pa. Cmwlth. July 8, 2022). And there is no impediment to their having that voice as amici curiae. Because, as developed above, it is far from clear Appellants have any enforceable right to force Pennsylvania electricity producers to participate in RGGI - or at least to do so via the regulations promulgated by DEP - it is hard to conclude they have asserted any right too important to be denied review that will be irreparably lost if they are not permitted to intervene.

To the extent the above embraces factors that impact upon the merits of the intervention-denial order while evaluating its appealability, as previously noted I question whether the two can be strictly separated. In fact, this Court has issued decisions that are difficult to reconcile. In Pennsylvania Association of Rural & Small Schools v. Casey, 613 A.2d 1198 (Pa. 1992), we quashed an appeal from an intervention-denial order on the basis that the litigant's interests were adequately represented by another party. See id. at 1201. But adequate representation by another has nothing to do with the collateral order doctrine; it relates only to a permissible basis for the trial court to deny intervention under Pa.R.A.P. 2329 where a prospective intervenor satisfies one of the initial grounds for intervention under Pa.R.A.P. 2327. At the other end of the spectrum, in Markham v. Wolf, 136 A.3d 134 (Pa. 2016), we implied in a footnote that all intervention-denial orders are automatically appealable as collateral orders in light of the holding in Barnes. See id. at 138 n.4.

Under my reading of our decisional law on this topic, an intervention-denial order may or may not be appealable, largely depending on the appellate court's evaluation of the importance of the right the prospective intervenor seeks to vindicate - an evaluation that overlaps with a merits assessment of whether the trial court's order should be affirmed. In this respect, our intermediate court explained in an earlier case that

the merits of the petition to intervene necessarily are considered as part of the analysis to determine whether the claim asserted is "too important to be denied review" [under the collateral-order doctrine]. . . . The appellant must at a minimum show actual entitlement to intervene under the applicable Rules of Civil Procedure in order to meet this test.

Cogan v. County of Beaver, 690 A.2d 763 (Pa. Cmwlth. 1997). The upshot, in my view, is that the appealability of an order denying intervention cannot be assessed without some consideration of its validity. From a purist's point of view, this mixes two distinct issues - appealability and correctness. But short of making intervention-denial orders categorically appealable as collateral orders, there would appear no other way to remain true to the wording of Rule 313(b) and the concept that exceptions to the final order doctrine are to be narrowly applied. Moreover, refusing to engage in some review along these lines could fail to uphold each litigant's constitutional right to take at least one appeal. See Pa. Const. art. V, § 9.

II. Merits

A. Standing to intervene

As recounted by the majority, on the question of whether Appellants had standing to intervene under Rule 2327, see Pa.R.Civ.P. 2327(4) (providing a person may intervene who establishes that the outcome of the action may affect a legally-enforceable interest of that person), the trial court held Appellants as organizations lacked standing, but they attained associational standing because at least one of their individual members testified concerning alleged harms they suffered, which they attributed to emissions from power generation using fossil fuels. But cf. FDA v. Alliance for Hippocratic Medicine,___ U.S.___,___, 2024 WL 2964140, at *15-*19 (U.S. June 13, 2024) (Thomas, J., concurring) (offering a critique of the concept of associational standing and arguing it cannot be supported under Article III). These alleged harms, which are deemed by the majority to affect legally-enforceable interests, stem from, inter alia, the individuals' responses to perceived changes in the air and weather. They include such mental impressions as concerns that the weather has worsened over the past 25 years, apprehensions about dehydration and overheating, and "eco-anxiety" - all of which they attribute to the climate and their perceptions about climate change. See Majority Op. at 27-28.

In terms of expert evidence, the majority relies on the intervention hearing testimony of Dr. Deborah Gentile, an allergy and immunology physician, who testified on behalf of the Clean Air Council. See id. at 28-30. The trial court qualified Dr. Gentile as an expert in the health effects of air pollution generated by power plants, but her testimony was broader than that, as it covered matters of public policy including her predictions concerning the environmental impact of the challenged regulation - a topic in which she had no expertise. See, e.g., N.T., May 11, 2022, at 373-74 (reflecting Dr. Gentile's testimony that the RGGI rules will reduce air pollution in Pennsylvania). She admitted on cross-examination that the EPA's air-quality standards were already being met at all monitoring sites in Pennsylvania, see id. at 379, and that she had no knowledge of whether "leakage" from other states would offset prospective air improvements in Pennsylvania attributable to RGGI participation.³ She noted, in this regard, that she was "not an expert on that at all." Id. at 380-81; see also id. at 381 ("I'm not an expert in how power is generated and moved across the grid.").

3 For purposes of the hearing, leakage was stated to mean that fossil-fuel-fired plants in neighboring states would produce more electricity and more emissions due to operational reductions by Pennsylvania power plants attributable to this state's participation in RGGI. Id. at 380. Presumably, some of the emissions and electricity generated in those states would travel across state lines into Pennsylvania.

Dr. Raymond Najjar, an expert in atmospheric science, climate change, and climate modeling, also testified for Appellants regarding the connection between carbon emissions and a warming atmosphere. Although he confessed to having only "basic" familiarity with RGGI, id. at 313, he stated without qualification that it "will reduce the amount of carbon dioxide in the atmosphere" - although it was unclear how he arrived at that conclusion or whether he had any specialized knowledge concerning the electricity-generation industry or regulatory policy. He appeared to support RGGI on the basis that "we all have to do our part" while acknowledging carbon emissions from elsewhere can affect Pennsylvania just as much as Pennsylvania emissions. See id. at 314 (explaining it "doesn't really matter where [carbon dioxide] comes from").⁴ The Commonwealth Court nonetheless characterized all of Appellants' evidence as "insufficient" and found it was unclear from the record how RGGI participation would affect air quality in Pennsylvania:

4 As the majority recites, Dr. Najjar did testify that an elevated carbon level "makes people die," but he clarified that 5,000 tons of carbon dioxide "will lead to one death between now and [the year] 2100." Id. at 306. He also did not address the topic of leakage, see supra note 3, as he appeared to assume carbon reductions in Pennsylvania would not be offset by increased carbon output in neighboring states.

No party presented evidence as to the number of CO2 allowances that will be available for auction if the Commonwealth joins RGGI . . . and how that translates to lower emissions at this time. There was no evidence of how many sources are subject to emissions limitations and how those limitations would affect Pennsylvania covered sources.

Ziadeh v. Pa. LRB, No. 41 M.D. 2022, slip op. at 19 (Pa. Cmwlth. July 8, 2022).

As the majority develops, intervention under Rule 2327(4) requires an interest that is substantial, direct, and immediate. See Markham, 136 A.3d at 140. In other words, a prospective intervenor must have standing. See Application of Beister, 409 A.2d 848, 850-51 & n.2 (Pa. 1979). A substantial, direct, and immediate interest is one where the interest surpasses that of all citizens in procuring obedience to the law, the challenged action is the cause of party's harm, and the causal connection is neither remote nor speculative. See Trust Under Will of Ashton, 260 A.3d 81, 88 (Pa. 2021). As well, standing impliedly presumes the judicial relief sought can remedy the alleged harm. Without that predicate, Pennsylvania's judicial resources would be wasted on litigation where the requested relief will have no beneficial effect. Thus, standing in this jurisdiction has been phrased in terms of an ability to seek "judicial redress," Sears v. Wolf, 118 A.3d 1091, 1102 (Pa. 2015), to seek "civil redress," Morrison Informatics v. Members 1st Fed. Credit Union, 139 A.3d 636, 640 (Pa. 2016), and the like, see generally Firearm Owners Against Crime v. Papenfuse, 261 A.3d 467, 492 (Pa. 2021) (Wecht, J., concurring) ("At its core, standing is a flexible construct that enables judicial redress when the government has engaged in conduct or enacted laws that infringe the rights held by the citizenry."), and this is quite consistent with the redressability facet of Article III standing in the federal system.⁵ Finally, standing requires not only a substantial, direct, and immediate interest, it requires an interest the law protects. See S. Bethlehem Assocs. v. Zoning Hearing Bd. of Bethlehem Twp., 294 A.3d 441, 447 (Pa. 2023) (denying standing where the litigant's interest in maintaining market share and pricing free from market competition was substantial, direct, and immediate, but it was not one the law protects).

5 See, e.g., Hein v. Freedom From Religion Found., 551 U.S. 587, 598 (2007) (observing Article III standing involves an injury fairly traceable to the defendant's conduct which is likely to be redressed by the relief sought); Simon v. E. Ky. Welfare Rights Org., 426 U.S. 26, 45-46 (1976) (standing requires a "substantial likelihood" that prevailing in the litigation will result in the plaintiffs receiving the benefit they seek); see also Alliance for Hippocratic Medicine, ___U.S. at___ n.1, 2024 WL 2964140, at *6 n.1 (observing that, even if a plaintiff was harmed by state action, redressability "can still pose an independent bar" if the case is not "of the kind 'traditionally redressable in federal court'") (quoting United States v. Texas, 599 U.S. 670, 676 (2023)).

The majority presently endorses the trial court's finding that Appellants' individual members have a legally enforceable interest in the outcome of this litigation. This appears to reflect a shift by this Court to a more lenient standard than it used in the past relative to standing to intervene in litigation that calls into question a statute's constitutionality. Recently, in Allegheny Reproductive Health Center v. DHS, 309 A.3d 808 (Pa. 2024), the plaintiffs challenged a statute that prevented taxpayer dollars from being used to pay for abortions. This Court denied an application to intervene filed by legislative parties seeking to uphold the provision. Although that issue involved legislative standing, which is its own topic, this Court added that denial of intervention was especially appropriate because the prospective intervenors' "interest is merely defending the constitutionality of the Coverage Exclusion, making their interests no greater than that of the general citizenry." Id. at 846. Here, too, Appellants are seeking to vindicate an interest shared by "the general citizenry" - their interest in a clean environment. See Pa. Const. art I, § 27 (requiring the Commonwealth to conserve and maintain natural resources "for the benefit of all the people"). Allowing Appellants to bootstrap their members' individualized concerns about the weather and climate change into associational standing in this context appears particularly generous on the part of this Court.

To see just how generous, consider that only four years ago we resolved a dispute in which certain parties filed a petition challenging an Election Code provision requiring mail-in ballots to be received by election day. One such challenger, the Pennsylvania Alliance for Retired Americans, was described by the Associated Press as a "major Democratic political group," and "the main super PAC supporting . . . presidential nominee Joe Biden." Crossey v. Boockvar, 108 MM 2020, Concurring and Dissenting Statement of Chief Justice Saylor, at 2 (filed Aug. 21, 2020) (quoting Jonathan Tamari, A Key Democratic Group is Suing to Ease Pennsylvania's Vote-By-Mail Laws, The Philadelphia Inquirer (Apr. 22, 2020)). When Republican organizations sought to intervene as additional respondents, this Court denied the request notwithstanding that they presented "numerous reasons why they ha[d] particularized interests" in the matter, including assertions that they devoted substantial resources toward voter education and turnout. Id. at 1. This Court denied relief in spite of the high public importance of the issues raised, which, if anything, should have counseled in favor of a liberal approach to intervention.

As developed above, presently several of Appellants' members testified to their perceptions concerning air quality, the weather, and changes in the weather, as well as their lay opinions that such perceived changes are caused by climate change more broadly. In this latter respect, they also testified about their own anxiety concerning the environment, which they termed "eco-anxiety," and which the majority presently credits as a basis for standing. See Majority Op. at 29.⁶ While these witnesses' desire for a healthy environment and a stable climate are, as noted, shared by all Pennsylvanians, on this record any suggestion that implementation of the challenged RGGI regulation will, in fact, redress those harms is speculative. Yet, in the context of this case, these witnesses are deemed to have a sufficient, legally-enforceable interest in the outcome such that their lay beliefs and personal anxieties comprise a valid basis for associational standing on the part of Appellants. And this is true even though the salient challenge to the RGGI regulation is based on the dual contentions, not directly related to Article I, Section 27, that it violates separation of powers and comprises an unconstitutional tax. The conclusion seems inescapable, then, that this Court is now broadening the foundation for standing to intervene beyond the comparatively narrow confines applied in the earlier controversies mentioned above.

6 If a person's individual anxiety over the climate and government policy regarding the environment constitutes a basis for standing, this could call into question the precept that harm to ideological interests is insufficient to confer standing.

B. Adequate representation by another party

The majority also faults the trial court for denying intervention pursuant to Rule 2329(2). See Pa.R.Civ.P. 2329(2) (permitting the court to deny intervention where "the interest of the petitioner is already adequately represented"). The majority reasons that a person who thinks up a new, "nonfrivolous argument," Majority Op. at 31, may not be denied intervention under that rule, whereas intervention may be denied to someone who forwards essentially the same arguments as the existing party or whose new arguments are frivolous. See id. at 30-32.

This line of reasoning does have the benefit of giving meaning to the "adequately" qualifier in Rule 2329(2). But on this issue as well, the majority's present stance signals that the Court is now prepared to offer prospective intervenors more latitude than it did in the past. Referencing Crossey again, the political organizations who sought to intervene and argue in favor of enforcing the Election Code were denied that opportunity notwithstanding that the only named respondent, the Secretary of the Commonwealth, had by that time withdrawn her preliminary objections and affirmatively aligned her position with that of the petitioners, expressly favoring the judicial relief they sought and disfavoring enforcement of the law. See Crossey v. Boockvar, 108 MM 2020, Praecipe to Withdraw Certain of Respondents' Preliminary Objections Based on United States Postal Service's Announcement of Statewide Mail Delays Affecting General Election, at 7 (filed Aug. 13, 2020). A similar dynamic was evident in Allegheny Reproductive, where the sole party defendant was on record as disagreeing with the very statute it was charged with defending on remand against the strictest level of judicial scrutiny. See Allegheny Reproductive, 309 A.3d at 998 n.1 (Mundy, J., dissenting from denial of intervention). In both of those circumstances, this Court denied intervention to persons who actually favored upholding and applying the statute in question when no existing party in the case supported that result.

Here, by contrast, not only is Appellants' core position - that the challenged RGGI regulation is valid and should be implemented - identical to that of DEP, Appellants seek no other relief beyond what DEP is already requesting. Yet, because they are advancing their own argument in favor of the same relief, they cannot be denied intervention. In prior disputes, the fact a prospective intervenor forwarded its own arguments as to why the challenged legislation was valid was of no moment; here it is dispositive. In prior disputes, the fact the governmental entity charged with enforcing the law disagreed with the law or sought to avoid enforcing it did not move this Court to allow intervention by parties who wished to defend the law and have it enforced; here, intervention is granted although the governmental agency involved is already "vigorously defending" the challenged regulation. Ziadeh v. Pa. LRB, Nos. 41 & 247 M.D. 2022, slip op. at at 20 (Pa. Cmwlth. July 8, 2022).

III. Conclusion

Because the majority's extraordinarily lenient approach to intervention in this matter is difficult to reconcile with our prior cases, I respectfully dissent from its present holding that the Commonwealth Court abused its discretion in denying Appellants' application to intervene. Nevertheless, this Court is evidently making a fresh start and I would hope that in future cases it will evenhandedly apply its newfound liberality with respect to entities seeking to intervene in important constitutional litigation.

CONCURRING AND DISSENTING OPINION

BROBSON, JUSTICE.

To facilitate Pennsylvania's participation in the Regional Greenhouse Gas Initiative (RGGI), the Department of Environmental Protection (DEP) developed, and the Environmental Quality Board (EQB) adopted, a rulemaking package, which, like the Majority, I will refer to as the RGGI Regulation. The Secretary of the DEP and Chairman of the EQB commenced this litigation by filing a petition for review in the Commonwealth Court's original jurisdiction, challenging the refusal of the Legislative Reference Bureau (LRB) to publish the RGGI Regulation. The focus of the action morphed after the Commonwealth Court permitted various members of the General Assembly to intervene in the matter, as intervenors from the Pennsylvania Senate (Senate Intervenors) presented counterclaims alleging that the DEP violated the law in several respects by promulgating and attempting to publish the RGGI Regulation.

Various entities also applied to intervene in this litigation. Most important for present purposes, three nonprofit environmental corporations requested intervenor status-namely, Citizens for Pennsylvania's Future, Clean Air Council, and Sierra Club (Nonprofits). The Commonwealth Court denied Nonprofits' application to intervene, and they appealed to this Court. Nonprofits also appealed a Commonwealth Court order that preliminarily enjoined the implementation of the RGGI Regulation. The Majority reverses the Commonwealth Court order that denied Nonprofits' application to intervene and dismisses as moot the appeal from the preliminary injunction order.

I agree with several aspects of the Majority Opinion. Specifically, I agree with the Majority that: (1) the Commonwealth Court's order denying Nonprofits' request to intervene qualifies as an immediately appealable collateral order; (2) the issue regarding Nonprofits' intervention is not moot; and (3) Nonprofits' appeal concerning the Commonwealth Court's preliminary injunction order was rendered moot by the Commonwealth Court's subsequent order permanently enjoining the DEP from enforcing the RGGI Regulation, which was codified in July of 2022. On the first point-appealability as a collateral order-my reasoning differs from that of the majority, particularly with respect to the second prong of the collateral order inquiry. (Majority Opinion at 18.) This prong asks whether "the right involved is too important to be denied review." Pa. R.A.P. 313. To me, the Majority conflates Nonprofits' environmental interests with the "right involved" in the Commonwealth Court's order denying intervention, which is the order under review. Here, as with all orders denying intervention, the "right involved" is the right, under Rule 2327 of the Pennsylvania Rules of Civil Procedure, to intervene. See K.C. v. L.A., 128 A.3d 774, 779-80 (Pa. 2015) (holding that decision regarding claimed right to standing to intervene has direct effect on appellants' ability to participate in proceeding, satisfying second prong of collateral order doctrine). Moreover, this Court has counseled would-be intervenors that the failure to seek an immediate appeal from an order denying intervention would adversely affect their ability to later seek appellate review of a later merits decision below. See In re Barnes Found., 871 A.2d 792 (Pa. 2005). Accordingly, an order denying intervention not only implicates a right to intervene under our procedural rules but also a right to appeal under Article V, Section 9 of the Pennsylvania Constitution. It is because of these rights-i.e., the right to intervene under our procedural rules and the right to appeal under the Pennsylvania Constitution- that I believe Nonprofits satisfy the second prong of the collateral order three-part inquiry. I thus concur with the Majority's conclusion set forth in Part II.A. I join in full Parts I, II.B., and III of the Majority Opinion.

I disagree, however, with Part II.C. of the Majority Opinion, wherein the Majority reverses the Commonwealth Court's decision denying Nonprofits' application to intervene. To establish their right to intervene in this matter, Nonprofits had to establish that they fell within one of the categories of persons entitled to intervene under

Pennsylvania Rule of Civil Procedure 2327, which provides:

At any time during the pendency of an action, a person not a party thereto shall be permitted to intervene therein, subject to these rules if

(1) the entry of a judgment in such action or the satisfaction of such judgment will impose any liability upon such person to indemnify in whole or in part the party against whom judgment may be entered; or

(2) such person is so situated as to be adversely affected by a distribution or other disposition of property in the custody of the court or of an officer thereof; or

(3) such person could have joined as an original party in the action or could have been joined therein; or

(4) the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action.

Pa.R.Civ.P. 2327 (emphasis added). If Nonprofits satisfied this burden, then the Commonwealth Court had the discretion to deny Nonprofits' request to intervene under any one of the circumstances set forth in Pennsylvania Rule of Civil Procedure 2329, which provides:

Upon the filing of the petition and after hearing, of which due notice shall be given to all parties, the court, if the allegations of the petition have

been established and are found to be sufficient, shall enter an order allowing intervention; but an application for intervention may be refused, if

(1) the claim or defense of the petitioner is not in subordination to and in recognition of the propriety of the action; or

(2) the interest of the petitioner is already adequately represented; or

(3) the petitioner has unduly delayed in making application for intervention or the intervention will unduly delay, embarrass or prejudice the trial or the adjudication of the rights of the parties.

Pa.R.Civ.P. 2329; see In re Pa. Crime Comm'n, 309 A.2d 401, 408 n.11 (Pa. 1973).

The Majority agrees with the Commonwealth Court's determination that Nonprofits presented sufficient evidence to qualify to intervene under paragraph (4) of Rule 2327- i.e., "the determination of such action may affect any legally enforceable interest of such person whether or not such person may be bound by a judgment in the action." The Majority concludes, however, that the Commonwealth Court abused its discretion under Rule 2329(2) by finding that the DEP is adequately representing Nonprofits' interests and, for this reason, denied them intervention. For the reasons that follow, I disagree with the Commonwealth Court and the Majority that Nonprofits qualify to intervene under Rule 2327(4). Moreover, even if Nonprofits were entitled to intervene under Rule 2327(4), unlike the Majority, I do not believe that the Commonwealth Court abused its discretion in denying intervention under Rule 2329(2).

Whether an applicant should be permitted to intervene under Rule 2327 generally presents a question of law. Allegheny Reprod. Health Ctr. v. Pa. Dep't of Hum. Servs., 309 A.3d 808, 843 (Pa. 2024). Consequently, "our scope of review is plenary, and our standard of review is de novo." Id. As the Majority aptly explains, in deciding whether a potential intervenor has demonstrated that it is entitled to intervene pursuant to Rule 2327(4), a court must examine as a threshold matter whether the potential intervenor has standing. (See Majority Opinion at 23 (stating that "[w]hether a potential party has a legally enforceable interest in permitting intervention under Rule 2327(4) 'turns on whether they satisfy our standing requirements'") (quoting Markham v. Wolf, 136 A.3d 134, 140 (Pa. 2016)).) To determine whether a potential intervenor is aggrieved and, therefore, has standing to intervene in litigation, a court should consider whether the potential intervenor has a substantial, direct, and immediate interest in the matter being litigated. Wolf, 136 A.3d at 140. As to these requirements, this Court has stated:

To have a substantial interest, the concern in the outcome of the challenge must surpass the common interest of all citizens in procuring obedience to the law. An interest is direct if it is an interest that mandates demonstration that the matter caused harm to the party's interest. Finally, the concern is immediate if that causal connection is not remote or speculative.

Id. (citations and quotation marks omitted). Important to this matter, this Court also has explained:

[A]n association, as a representative of its members, has standing to bring a cause of action even in the absence of injury to itself if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the challenged action and the members of the association have an interest in the litigation that is substantial, direct, and immediate.

Pa. Med. Soc'y v. Dep't of Pub. Welfare, 39 A.3d 267, 278 (Pa. 2012) (emphasis added) (citing Warth v. Seldin, 422 U.S. 490, 511 (1975)); see Robinson Twp., Washington Cnty. v. Commonwealth, 83 A.3d 901, 922 (Pa. 2013) ("Under Pennsylvania law, an association has standing as representative of its members to bring a cause of action even in the absence of injury to itself, if the association alleges that at least one of its members is suffering immediate or threatened injury as a result of the action challenged.") (emphasis added). Thus, if an association, like the various Nonprofits, wishes to establish standing by way of the status of one of its members, the association must prove, inter alia, that at least one of its members is suffering an immediate or threatened injury as a result of the challenged action.¹ Our precedent establishes that, for purposes of associational standing, "the challenged action" typically is the act that prompted the litigation.

1 See Robinson Twp., 83 A.3d at 922-23 (concluding that non-profit environmental group had standing to challenge legislation where, inter alia, environmental group demonstrated that some of its individual members were likely to suffer considerable harm as result of enactment of legislation that prompted litigation); Firearm Owners Against Crime v. Papenfuse, 261 A.3d 467, 481-88 (Pa. 2021) (determining that non-partisan political action committee had standing because it alleged that its members were harmed by enactment of ordinance challenged in litigation); S. Whitehall Twp. Police Serv. v. S. Whitehall Twp., 555 A.2d 794 (Pa. 1989) (holding that police collective bargaining agent had standing because it demonstrated that its members were harmed by alleged quota system instituted by township and chief of police, where quota system was focus of litigation).

The Majority explains that, here, Nonprofits "presented the testimony of individual members regarding alleged harms they are suffering due to CO2 emissions from fossil-fuel-fired power plants." (Majority Opinion at 27.) In addition, they "adduced expert testimony concerning the environmental and health impacts of CO2 emissions and the RGGI Regulation."² (Id. at 28.) Based upon the testimony that Nonprofits offered at the evidentiary hearing concerning their application to intervene, the Commonwealth Court concluded that Nonprofits "provided sufficient credible evidence to establish that they have a legally enforceable interest by virtue of injury to their members." (Commonwealth Court Opinion at 21.) The Majority reaches the same conclusion.

2 This expert testimony was offered at the hearing on the Senate Intervenors' application for a preliminary injunction, not at the hearing dedicated to Nonprofits' application to intervene. Thus, the expert testimony did not concern Nonprofits' contention that they are entitled to intervene in this litigation.

Specifically, the Majority finds that one member of each of the various Nonprofits established that she has standing to intervene. In making this finding, the Majority first concludes that the members' "interests in the outcome of the litigation are substantial." (Majority Opinion at 29.) In support, the Majority states: "The members claim specific harms to their well-being, including hotter and wetter weather, poor air quality, breathing difficulties, forced time inside, exacerbated asthma symptoms, worsened allergies, odd smells, dizziness, lightheadedness, headaches, ill loved ones, and eco-anxiety." (Id.) The Majority then reasons that "[t]hese specific interests in the outcome of the litigation go beyond the general interest shared by all Pennsylvanians in procuring obedience to the law. At stake for these individuals is not just fidelity to the law but the quality of their lives." (Id.)

The Majority also finds that the members' "interests in the outcome of this injunction litigation are direct: an injunction deprives them of the RGGI Regulation's purported environmental and health benefits, and their ongoing injuries persist or worsen." (Id. at 29-30.) Lastly, according to the Majority, the members' interest in the outcome of this litigation is immediate, as one of Nonprofits' experts testified at the preliminary injunction hearing that the RGGI Regulation would improve the environment and cause better health outcomes, moving the benefits of the RGGI Regulation outside of the realm of pure conjecture. In my view, the analyses offered by the Commonwealth Court and the Majority are not aligned with this Court's precedent regarding associational standing.

On almost a daily basis, individuals and organizations advocate for legislative and executive action that advances their favored policy interests. While individuals and organizations may seek to influence executive and legislative decision-making, we have never recognized any legally enforceable right to the implementation of favorable policies or the enactment of particular laws. Nonprofits, here, are advocates for "clean air and a stable climate." (Nonprofits' Application for Intervention ¶ 8.) The threshold question raised in this matter is whether those types of policy or advocacy interests become "legally enforceable interests"³ such that their proponents have standing to intervene in litigation challenging government action that promotes the proponents' interests rather than infringes upon them. Such a circumstance is strikingly inapposite to the circumstances under which this Court traditionally has determined standing to be proper in the face of a challenge to an ordinance, regulation, or statute.

3 Pa.R.Civ.P. 2327(4).

Our decision in Firearm Owners Against Crime presents a traditional standing analysis when an ordinance, regulation, or statute is challenged as unconstitutional. In that case, we considered whether Firearm Owners Against Crime (FOAC) had standing to challenge-on a pre-enforcement basis-an ordinance that regulated various aspects of possessing and discharging firearms in the City of Harrisburg. We concluded that FOAC had standing for the following reasons:

The individual [a]ppellees' interest is substantial because they, as lawful possessors of firearms and concealed carry licenses, seek a determination of the validity of the City's Discharge, Parks, and Lost/Stolen Ordinances, which criminalize aspects of their ability to carry and use firearms within the City and impose reporting obligations for lost or stolen firearms. This exceeds the "abstract interest of all citizens in having others comply with the law." William Penn Parking Garage, Inc. v. City of Pittsburgh, . . . 346 A.2d 269, 282 (1975) (defining substantial interest). Their interest is direct because the challenged ordinances allegedly infringe on their constitutional and statutory rights to possess, carry, and use firearms within the City. See id. (stating a direct interest "simply means that the person claiming to be aggrieved must show causation of the harm to his [or her] interest by the matter of which he [or she] complains."). Their interest is immediate because they are currently subject to the challenged ordinances, which the City is actively enforcing, and must presently decide whether to violate the ordinances, forfeit their rights to comply with the ordinances, or avoid the City altogether. This alleged harm to their interest is not remote or speculative. See [Off. of Governor v. Donahue, 98 A.3d 1223, 1229 (Pa. 2014)]. Because the individual [a]ppellees, who are all members of FOAC, have standing to challenge the Discharge, Parks, and Lost/Stolen Ordinances, FOAC has standing as an associational representative of these members to challenge the ordinances. See Robinson Twp., 83 A.3d at 922.

Firearm Owners Against Crime, 261 A.3d at 487-88.

Applying a similar analysis here, we must first examine the claims or challenges raised in this action. As this action now stands, the Senate Intervenors, through their counter-claims to the petition for review, seek to enjoin the publication of the RGGI Regulation on the basis that it constitutes an unconstitutional violation of the separation of powers doctrine because it: (1) interferes with the General Assembly's legislative authority to consider a regulation under Section 7(d) of the Regulatory Review Act;⁴(2) constitutes an ultra vires action beyond the authority granted to the executive branch under the Air Pollution Control Act (APCA);⁵ (3) usurps the General Assembly's authority to enter into interstate compacts or agreements, and (4) usurps the General Assembly's authority to levy taxes. The Senate Intervenors also seek to enjoin the regulation on the basis that it violates the APCA and what is commonly referred to as the Commonwealth Documents Law for failure to hold public hearings.⁶

4 Act of June 25, 1982, as amended, 71 P.S. § 745.7(d).

5 Act of January 8, 1960, P.L. (1959) 2119, as amended, 35 P.S. §§ 4001-4015.

6 Act of July 31, 1968, as amended, P.L. 769, 45 P.S. §§ 1101-1611.

As our precedent above makes clear, to have standing the would-be intervenor must establish interests that are adversely impacted-i.e., harmed-by the challenged action. Here, Nonprofits make clear that their only desire is to intervene to assist the DEP in fending off challenges by the Senate Intervenors. When the Secretary of the DEP and Chairman of the EQB initiated this litigation, "the challenged action" was the LRB's refusal to publish the RGGI Regulation. In their application to intervene, Nonprofits expressly stated that they did not wish to intervene "on that narrow issue[.]" (Nonprofits' Application for Leave to Intervene, 4/25/2022, at 3, ¶5.) As noted, however, after the Commonwealth Court allowed various members of the Legislature to intervene, "the challenged action" morphed into the DEP's alleged violation of the law in promulgating and attempting to publish the RGGI Regulation. Nonprofits unequivocally desired to intervene to supplement the DEP's advocacy in favor of the validity of the RGGI Regulation. The question, then, is what "legally enforceable interest" of the Nonprofits may be harmed by the challenged action?

Although the Senate Intervenors' counterclaims are varied, the core of their position is that the DEP and the EQB violated the law, including constitutional principles concerning the separation-of-powers doctrine, by promulgating and attempting to publish the RGGI Regulation. Thus, the action challenged by the Senate Intervenors is the creation of the RGGI Regulation. Although Nonprofits would like this Court to view Senate Intervenors' challenge of the RGGI Regulation as infringing on their rights under the Environmental Rights Amendment (ERA),⁷ the fact is that Nonprofits do not have a legally enforceable interest or right to executive or legislative action establishing the RGGI Regulation. Simply put, because Nonprofits have no right to the RGGI Regulation, none of the claims raised by Senate Intervenors in this litigation infringe upon any constitutional or other right currently enjoyed by Nonprofits. Furthermore, it is worth noting that the harms suffered by Nonprofits' members-i.e., injuries suffered from existing environmental conditions, pollution, and their associated impacts-are similar to harms suffered by many if not all Pennsylvanians. If the RGGI Regulation does not become an enforceable regulation in this Commonwealth, its absence does not harm Nonprofits' members any more than they are already harmed. This is because the absence of the RGGI Regulation is simply the status quo. Again, Nonprofits have no right, let alone a "legally enforceable interest," to particular proposed policies, regulations, or statutes⁸ that advance their interests. For this reason, I disagree with the Majority's conclusion that Nonprofits have established a substantial, direct, and immediate interest in the litigation that would confer standing on them for purposes of intervention under Rule 2327(4).

7 Pa. Const. art. I, § 27.

8 The Majority takes issue with my conclusion that the absence of the RGGI Regulation is simply the status quo, claiming that the RGGI Regulation is not, as I suggest, a "proposed" regulation because it has been codified in the Pennsylvania Code. While that (continued…) may be true, the RGGI Regulation is, as the Majority concedes, "currently subject to an injunction" and, therefore, is not and has never been in effect in the Commonwealth. (Majority Opinion at 34.)

The Majority's view on standing essentially takes the position that an individual or organization that has an interest in the subject matter has standing to intervene in litigation seeking to challenge any proposed regulation or legislation that advances that interest. This Court, however, has never held that an interest in the subject matter of litigation alone creates a "legally enforceable interest" sufficient to establish standing for intervention purposes, particularly when dealing with challenges to proposed legislative or administrative action. Put another way, standing is not afforded to would-be intervenors who profess to have only an interest in the subject matter or the outcome of the litigation. To allow otherwise means that we must recognize standing for all individuals or organizations to intervene if they can establish a "mere" interest-i.e., less than a "legally enforceable" interest-in the litigation.

Furthermore, I disagree with the Majority's conclusion that the Commonwealth Court abused its discretion by finding that the DEP is adequately representing Nonprofits' interest in this matter. See Pa.R.Civ.P. 2329(2). The only new dimension that Nonprofits add to this litigation is an argument that the money generated from the RGGI Regulation is not an unauthorized tax but, rather, a fee. Nonprofits highlight that, unlike the DEP, their members are beneficiaries of the trust created by the ERA. Nonprofits believe that this status establishes that they have a special interest in this litigation. Nonprofits insist that their members' beneficiary status places Nonprofits in the unique position to argue that the RGGI Regulation is not a tax but, rather, a permissible fee, as the ERA mandates that the proceeds from this regulation cannot be treated as general revenue. Instead, Nonprofits argue that, in line with trust principles, the RGGI Regulation proceeds must be dedicated to conserving the environment. According to Nonprofits, "[t]his nexus with the public trust precludes the General Assembly from appropriating the fee proceeds to become part of the General Fund of the Commonwealth, and limits [the] DEP's ability to expend the fee monies to protecting the trust asset from which they derive." (Nonprofits' Brief at 47.) While the Majority concludes that such an argument is "nonfrivolous," (Majority Opinion at 31), DEP may have had legitimate reasons not to advance that argument.⁹ Moreover, failure to advance every possible argument does not render the DEP's representation inadequate. Regardless, Nonprofits need not have party status to advance their argument on this point. This argument can be raised by an amicus. To become a party intervenor requires more under our rules.

9 Assuming arguendo that any proceeds from the Commonwealth's participation in RGGI must be directed to matters of environmental conservation, this does not necessarily answer the question of which branch of our state government-the executive or legislative-makes the ultimate determination of which environmental initiatives should benefit from the RGGI proceeds. This seems to me to be the central point of the "fee v. tax debate" currently before the Court.

Having failed to demonstrate that at least one member of each of the entities that make up Nonprofits have standing to intervene in this matter, Nonprofits have not established that they have a legally enforceable interest in the outcome of this litigation, as required by Pennsylvania Rule of Civil Procedure 2327(4). Thus, Nonprofits necessarily do not have associational standing to intervene. Consequently, I would affirm the Commonwealth Court's order denying Nonprofits' application to intervene, albeit for reasons that differ from those that led the Commonwealth Court to deny Nonprofits' application to intervene.