William & Mary Law Review


Julia E. Sappey


Over the last century, humans have warmed the planet by approximately 1.0°C. Pennsylvania’s average temperature has risen 1.8°F in the last hundred years, and climate scientists predict it will warm an additional 5.4°F by 2050. These rising temperatures create feedback loops, leading to warming that will eventually become irreversible. Warmer temperatures have already led to melting ice caps, rising sea levels, dangerous weather patterns, and food shortages. Human-produced greenhouse gases (GHG) are the largest contributing factor to this warming. The scientific community largely agrees that if humans do not reach carbon neutrality by 2050, damage to the climate will be irreparable. Beyond that point, it will be nearly impossible for humans to mitigate, let alone prevent, the worst of climate change’s impacts on the planet.

For at least the last decade, scientists and environmental organizations have emphasized the need to take protective measures against climate change and have provided actionable steps for governments at every level. Above all, these groups have stressed the importance of reducing carbon emissions and have proposed guidelines to achieve that goal. These strategies include transitioning energy sources and industries to greener practices, investing in sustainable infrastructure and agricultural systems, and climate finance and carbon pricing programs. Some countries have taken these proposals seriously and implemented significant policies and legislation to combat climate change.

The United States, particularly at the federal level, has ignored many of these recommendations for combatting climate change. Despite intense lobbying efforts and growing public support, Congress has failed to enact meaningful climate legislation. In recent years, the executive branch has rolled back many protective regulations. Constitutional jurisdiction requirements and the federal judiciary’s reluctance to recognize environmental rights have thus far posed insurmountable barriers to rights-based climate litigation.

In light of these challenges at the federal level and the dwindling time remaining to correct course, states, with fewer threshold barriers posed by jurisdictional requirements, are an increasingly attractive forum for enforcing environmental rights. At the state level, officials can enact, implement, reinterpret, and amend policies, legislation, and constitutional provisions more quickly and with more flexibility than their federal counterparts. States, particularly in recent years, have taken advantage of that flexibility. As of 2011, twenty-two states have constitutional provisions that protect environmental concerns either as a civil right or as a general policy matter. Despite these amendments, enforcing environmental rights has proven challenging in many states.

In 1971, Pennsylvanians voted to ratify the Environmental Rights Amendment (ERA) in Article I, Section 27 of the Commonwealth’s constitution. Unlike other states, Pennsylvania enumerates environmental protections in its Declaration of Rights, placing them alongside other fundamental rights, such as the freedom of speech and religion. Despite this elevation, early decisions from the Pennsylvania courts severely limited the ERA’s power. However, Pennsylvania courts have recently construed section 27 to protect Pennsylvanians’ environmental rights and impose certain duties on the Commonwealth. Pennsylvania’s ERA jurisprudence offers helpful legal principles that other states can tailor to their own constitutional frameworks to address climate change at a subnational level.

In October of 2019, Pennsylvania Governor Tom Wolf signed Executive Order 2019-07, which directed the Commonwealth’s Department of Environmental Protection (DEP) to produce a plan by July 2020 to reduce Pennsylvania’s carbon emissions by either joining the Regional Greenhouse Gas Initiative (RGGI), a greenhouse gas cap and trade program, or establishing its own carbon emission reduction scheme. As participants in RGGI’s cap and trade system, nine states in the Northeast and mid-Atlantic region limit GHG emissions by selling carbon allowances in quarterly auctions, the proceeds of which are returned to participating states. In early 2020, the DEP presented its preliminary proposal for implementing a cap and trade program and has since continued through the regulatory rulemaking process. Despite this progress, the Commonwealth has not yet articulated how it will use the funds generated from RGGI’s allowance auctions. This Note argues that the Commonwealth not only has a duty to combat climate change by reducing carbon emissions but also has a duty under the ERA to invest the funds it earns through carbon allowance auctions into the conservation and protection of Pennsylvania’s environment.

Part I examines the ERA’s purpose and early history. Part II analyzes recent court decisions that have established both the contours of Pennsylvanians’ environmental rights and the Commonwealth’s duties under the ERA. Part III explains the functionality of cap and trade systems generally and how RGGI currently operates. Part IV discusses how the Commonwealth’s duties under the ERA inform the administration of a cap and trade program and how Pennsylvania courts can enforce the fulfillment of those duties. Part V anticipates and addresses potential counterarguments regarding enforcement in light of separation of powers concerns and the sufficiency of RGGI in fulfilling the Commonwealth’s duties.