Pennsylvania Must Act to Limit Greenhouse Gases, Lawyers Argue

Nearly 25 years ago, environmental lawyers Robert McKinstry and John Dernbach appeared at an early conference on climate change at Penn State University. They spoke about how state policy could fill the gaps left by federal inaction. 

“At that point, we had plenty of time,” McKinstry said. But they’ve since watched opportunities to curb greenhouse gases in Pennsylvania slip by again and again, even as climate science advanced and flooding, severe storms, drought and wildfire smoke rattled the state. Most recently, the prospect of joining the Regional Greenhouse Gas Initiative was taken off the table as part of last year’s protracted budget negotiation. 

On Thursday, the lawyers demanded action on a petition they first submitted in 2018, arguing that the state is obligated under its environmental rights amendment to reduce greenhouse gas pollution.

“We have lost seven years—time that could have been spent more fully developing a lower-cost and more reliable clean energy economy,” they wrote in a cover letter to Pennsylvania’s Environmental Quality Board, which adopts regulations for the Department of Environmental Protection. “This is unacceptable.”

Pennsylvania’s constitutional environmental rights amendment states that 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.” It names the Commonwealth of Pennsylvania as a trustee of these resources. 

“The people who are in charge of Pennsylvania’s government, and that’s not just the governor, but it’s also the legislature, have a responsibility under the environmental rights amendment to do something serious about climate change,” Dernbach said.

The petition proposes an economy-wide cap-and-trade program called the SAVER regulation, for Stability and Affordability Via Emissions Reductions. Modeled on California’s 13-year-old program, SAVER is intended to reduce emissions in Pennsylvania by 40 percent by 2030 with the goal of reaching carbon neutrality in 2052. 

Cap-and-trade sets limits, or “caps,” on the amount of pollution that sources can emit. Companies can then buy and sell allowances to emit certain volumes of pollution, incentivizing efficiency and emission reduction. The revenue generated is typically invested in initiatives that benefit clean energy production, public health or sustainability. Cap-and-trade is used around the world, from Washington state to South Korea, the European Union and China. The first American national cap-and-trade program, aimed at reducing the harmful pollution that caused acid rain, was signed into law in 1990 by President George H.W. Bush.

McKinstry and Dernbach say the regulation would stimulate a clean-energy economy in Pennsylvania, creating jobs and reducing air pollution. The program would also create a fund to invest in public transportation, energy efficiency and electricity transmission systems. Funding for strapped public transit systems in Pennsylvania has become hugely controversial over the last few years. 

In California, critics of cap-and-trade have said the program isn’t meeting the state’s climate goals, and environmental justice advocates contend that its current design allows companies to continue spewing pollution near disadvantaged communities. Dernbach said cap-and-trade “does not inherently lead to environmental justice issues,” and he thinks those concerns could be addressed during the rulemaking process. The petition argues that SAVER would improve air quality in disadvantaged communities in Pennsylvania.

In 2018, the lawyers filed the original petition with Pennsylvania’s Environmental Quality Board. By then, the luxury of time to figure out how to move forward on climate change had evaporated. 

Now the situation is even more urgent. Increasing temperatures, extreme weather and rainfall have already cost the state hundreds of millions of dollars, and could inflict billions in damage to public infrastructure, agriculture and public health over the next 15 years. 

Pennsylvania’s greenhouse gas emissions have declined less than U.S. emissions overall since 2005. In some sectors, including agriculture and power generation, the state’s emissions are projected to increase in the future. 

If Pennsylvania were its own country, it would rank 39th globally for climate pollution, behind Spain and ahead of Myanmar, according to the Rhodium Group.

“I’ve seen so little progress in my whole lifetime as an environmental activist,” said Joe Minott, a signatory of the petition who served as the executive director and lead lawyer for the Clean Air Council for more than 35 years. “It’s really discouraging.”

With the federal government backing away from its climate commitments and clean energy investments under the second Trump administration, state policy matters more than ever, McKinstry said. “That just increases the imperative for the states to act.”

“It’s a great petition,” said Maya van Rossum, the Delaware Riverkeeper and the founder of a national movement to adopt environmental rights amendments in other states. “It’s looking to accomplish an incredibly critical step for Pennsylvania and climate change.” 

Van Rossum said her organization, Green Amendments for the Generations, is planning to submit a letter in support of the petition. She cited a 2024 ruling in Montana that found the state violated residents’ rights by refusing to consider the impacts of climate change when it granted permits for fossil fuel projects. Montana’s amendment was inspired by Pennsylvania’s, she said.

For decades, Pennsylvania’s environmental rights amendment was considered mostly useless as a legal tool following a court decision in 1976. Dernbach, professor emeritus at Widener University Commonwealth Law School in Harrisburg, was part of the reason that changed. 

In 1999, he wrote a law review article making the case that the ERA deserved a broader interpretation. A 2013 Pennsylvania Supreme Court decision found the ERA had been interpreted too narrowly by the courts.

“I’ve seen law review articles that I’ve written as a young law professor turn into law and, frankly, turn into the foundation for this petition,” Dernbach said.

Now the petition could serve as a real-world test of the idea that the ERA also applies to greenhouse gas emissions, in addition to other environmental harms.

“Now Is the Time to Act”

Because Pennsylvania’s legislature is divided and often gridlocked, environmental advocates have sought other ways the state can take action. The Environmental Quality Board is one such possible route.

The board accepted the lawyers’ original petition in 2019, triggering a 60-day deadline for DEP to produce a report with recommendations. When then-Gov. Tom Wolf moved to join the Regional Greenhouse Gas Initiative (RGGI) by executive order in 2019, the team behind the petition decided to wait to follow up with DEP, which had not yet produced a report, until the question of Pennsylvania’s membership was resolved. 

But RGGI faced fierce opposition from Republican lawmakers and the oil and gas industry. Years of litigation followed. Pennsylvania never participated in the consortium, which works to lower greenhouse gas emissions from power plants as part of a cooperative of 11 states. 

In his budget address on Tuesday, speaking as Pennsylvanians grapple with rising electricity prices, Gov. Josh Shapiro said the end of the fight over RGGI meant it was now “time to act” on energy policy. Shapiro made a pitch for his Lightning Plan to reform permitting and boost power generation. “If you don’t like it—stop making excuses, put your proposal on the table and let’s get to work,” he said. 

In 2023, Shapiro convened a working group to examine RGGI membership that ultimately concluded that the state needed its own “cap and invest” program for utility emissions. The Lightning Plan includes the Pennsylvania Climate Emissions Reduction Act (PACER), a proposal for a state-run cap-and-invest program for power plants. PACER was first introduced in the state legislature in 2024. The governor’s office declined to comment for this article.

The House Republican Appropriations Committee called PACER and a related program “economically damaging energy taxes.” Last year, gas industry trade group the Marcellus Shale Coalition criticized Shapiro’s energy plan, saying his proposals would drive new power generation investment to other states and sideline natural gas “in favor of more expensive, unproven and unreliable energy sources that threaten the stability of our grid.” 

Natural gas currently supplies about 60 percent of Pennsylvania’s electricity. Only 4 percent comes from renewable energy sources. One reason Pennsylvania consumers face higher electricity costs is the state’s dependence on natural gas.

Dernbach and McKinstry know that the road ahead will be difficult. Those obstacles are not a reason to give up, they said. “It’s going to be frustrating, but doing the right thing often takes a long time,” McKinstry said.