IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clean Air Council, :
Petitioner :
:
v. : No. 502 M.D. 2015
: Submitted: May 13, 2016
Department of Labor and Industry :
of the Commonwealth of :
Pennsylvania and Uniform Construction :
Code Review and Advisory Council :
of the Commonwealth of Pennsylvania, :
Respondents :
BEFORE: HONORABLE P. KEVIN BROBSON, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE JAMES GARDNER COLINS, Senior Judge
OPINION NOT REPORTED
MEMORANDUM OPINION BY
SENIOR JUDGE COLINS FILED: January 5, 2017
Clean Air Council (CAC) filed an amended petition for review in this
Court’s original jurisdiction on October 9, 2015. CAC named as Respondents the
Department of Labor and Industry (L&I) and the Uniform Construction Code
Review and Advisory Council (RAC). On January 6, 2016, this Court granted an
application to intervene filed by the Pennsylvania Builders Association (PBA). At
the heart of CAC’s amended petition for review is a constitutional challenge to the
2011 amendments to the Pennsylvania Construction Code Act1 (PCCA) and the
recommendation issued by RAC on May 20, 2015 to adopt certain model building
code provisions as a part of the Pennsylvania Uniform Construction Code2
1
Act of November 10, 1999, P.L. 491, as amended, 35 P.S. §§ 7210.101-.1103.
2
34 Pa. Code §§ 401.1-405.42.
(PUCC). We conclude that CAC lacks the requisite standing to proceed with its
amended petition for review. Accordingly, we dismiss CAC’s amended petition
for review without prejudice.
The General Assembly enacted the PCCA in 1999 to establish a
uniform construction code for the Commonwealth. The purpose of the PCCA is to
create uniformity throughout the Commonwealth in the construction, alteration,
repair and occupancy of buildings by creating minimum legal standards with which
those seeking to build within the Commonwealth must comply. Sections 102, 104
and 503 of the PCCA, 35 P.S. §§ 7210.102, 7210.104, 7210.503. By enacting the
PCCA, the General Assembly intended to, inter alia, provide standards for the
protection of life, health, property and the environment. Section 102(b)(1) of the
PCCA, 35 P.S. § 7210.102(b)(1).
Since its enactment, the PCCA has been amended numerous times,
including in 2008, when the General Assembly amended the PCCA to establish
RAC.3 The 2008 amendments to the PCCA created RAC4 as an independent
agency with authority delegated by the General Assembly to review and evaluate
the triennial model codes issued by the International Code Council (ICC) and to
advise L&I if any of the model code provisions should be excluded from inclusion
in the PUCC. Former Section 107(b)(3) of the PCCA, 35 P.S. § 7210.107.
3
Act of October 9, 2008, P.L. 1386.
4
The General Assembly provided for the composition of RAC to include 19 members appointed
by the Governor, and delineated specific and distinct professional requirements necessary for
each seat on RAC. Section 107(c) of the PCCA, 35 P.S. § 7210.107(C). For example, the
statute provides that one of the 19 members must be “a licensed mechanical engineer
specializing in plumbing and fire protection from an association representing professional
engineers who has recognized ability and experience in the design and construction of
buildings,” and another must be “an official of a city of the first class who has recognized ability
and experience in the administration and enforcement of this act.” 35 P.S. § 7210.107(C)(12) &
(18).
2
In September 2008, the ICC adopted model codes for 2009, triggering
RAC’s duties under the PCCA. Pennsylvania Builders Association v. Department
of Labor and Industry, 4 A.3d 215, 218 (Pa. Cmwlth. 2010). In April 2009, RAC
notified L&I that it had no exclusions from the model codes to recommend and
subsequently L&I promulgated regulations adopting the 2009 version of the model
codes as the PUCC. Id. On January 19, 2010, the PBA filed “a petition for review
in this Court’s original jurisdiction seeking a declaration that the 2009 PUCC and
other related codes are null and void as violative of Article II, Section 1 of the
Pennsylvania Constitution, Pa. Const. art. II, § 1[5],” because adoption of the codes
entailed important policy decisions that cannot be delegated by the General
Assembly. Pennsylvania Builders Association, 4 A.3d at 219. In support of its
argument that adoption of the 2009 model codes involved significant policy
determinations, the PBA alleged that “the new and amended provisions of the 2009
codes, especially the sprinkler requirements, have the effect of increasing the cost
of an average newly-constructed home by approximately $15,000.00.” Id. at 219.
L&I filed preliminary objections to the Association’s petition, which this Court
sustained, holding that the 2008 version of the PCCA “neither improperly
delegated the General Assembly’s rule-making authority, nor its authority over the
execution and administration of that law, so L&I’s adoption of ICC’s 2009 codes
as Pennsylvania’s 2009 [P]UCC did not violate Article II, Section 1 of the
Pennsylvania Constitution.” Pennsylvania Builders Association, 4 A.3d at 226.
5
Article II, Section 1 of the Pennsylvania Constitution is often referred to as the non-delegation
clause and guarantees that “[t]he 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. 2 § 1.
3
In 2011, the General Assembly again amended the PCCA.6 The 2011
amendments to the PCCA changed the process by which RAC reviewed and
recommended adoption by the Commonwealth of future model codes issued by the
ICC; rather than advise L&I whether ICC model code provisions should be
excluded from the PUCC, the 2011 amendments to the PCCA require RAC to
advise L&I which provisions of the ICC model codes should be included in the
PUCC. Section 107(b.1) of the PCCA, 35 P.S. § 7210.107(b.1). In addition, the
2011 amendments require that a recommendation for inclusion of an ICC model
code provision in the PUCC must be approved by a two-thirds vote of RAC’s
membership. Section 107(b.1) of the PCCA, 35 P.S. § 7210.107(b.1).
Furthermore, the 2011 amendments include a mandate that L&I promulgate
regulations adopting the model code provisions recommended by RAC without
change. Section 304(a) of the PCCA, 35 P.S. § 7210.304(a).
On May 20, 2015, RAC recommended, by a two-thirds majority vote,
that 16 provisions from the ICC triennial code revisions be adopted as a part of the
PUCC. On May 29, 2015, RAC sent a final recommendation to L&I containing
the ICC code provisions that had been approved by RAC for inclusion in the
PUCC, and on June 17, 2015, RAC sent L&I a letter clarifying which code
provisions within the PUCC would be revised by the recommended changes. On
September 22, 2015, L&I submitted a final-omitted rulemaking and a copy of a
regulatory analysis form to the Independent Regulatory Review Commission
(IRRC), which subsequently approved the final-omitted rulemaking, and to the
Chairpersons of the Senate Committee on Labor and Industry and the House Labor
Relations Committee. On November 10, 2015, the final-omitted (notice-omitted)
6
Act of April 25, 2011, P.L. 1.
4
rulemaking was deemed approved by the Senate Committee on Labor and Industry
and the House Labor Relations Committee. On November 28, 2015, the
regulations were published in the Pennsylvania Bulletin.
In its amended petition for review, CAC has alleged five counts
challenging the validity of the PCCA, as amended, and RAC’s May 20, 2015
recommendation of ICC model code provisions to include in the PUCC.7 CAC has
also requested additional equitable relief in the form of costs and reasonable
attorney fees. (Amended Petition for Review (APR) ¶300.)
Count I seeks to have RAC’s May 20, 2015 decision recommending
the adoption of new building codes and rejecting other provisions of the ICC
model codes declared null and void, and CAC seeks to permanently enjoin the
promulgation and adoption of regulations pursuant to RAC’s May 20, 2015
decision. In its amended petition for review, CAC alleges that RAC failed to
provide any reasoning for its vote to adopt only 16 of the ICC model code
provisions as a part of the PUCC. (Id. ¶239.) CAC further alleges that RAC
created subcommittees to examine the model code provisions applying the three
criteria specified in the PCCA—(i) the impact that the provision may have upon
health, safety and welfare of the public; (ii) the economic and financial impact of
the provision; and (iii) the technical feasibility of the provision8—and that RAC
ignored the recommendation of these subcommittees in final voting on its
recommendation to adopt only 16 model code provisions. (Id. ¶¶240-244.) In
addition, CAC alleges that “RAC itself admitted that its decision-making process
7
CAC has withdrawn Count II, a challenge to L&I’s interpretation of the PCCA, because it has
become moot; however, CAC reserves the right to resurrect its challenge should L&I revive its
interpretation of the Act. CAC has also withdrawn Count V, a due process claim.
8
See Section 107(b.1)(4)(i)-(iii) of the PCCA, 35 P.S. § 7210.107(b.1)(4)(i)-(iii).
5
was flawed and would result in a code that could not be understood or complied
with.” (Id. ¶245.)
Count III seeks to have the 2011 amendments to the PCCA declared
unconstitutionally vague because the amendments have rendered the PCCA
incomplete, conflicting and inconsistent, thereby preventing the PCCA from being
executed, and CAC seeks to have application of the PCCA permanently enjoined.
In its amended petition for review, CAC alleges that RAC struggled through the
2015 model code revision review and adopted an “essentially arbitrary selection of
code provisions,” as evidenced by statements made by RAC and several of its
members. (Id. ¶¶264-267.)
Count IV alleges that the 2011 amendments to the PCCA constituted
an improper delegation of legislative power to RAC and seeks to have application
of the PCCA permanently enjoined. CAC alleges in its amended petition for
review that the General Assembly has failed to provide adequate standards and
limitations to guide RAC by subverting the normal rule-making process because
RAC has been vested with a responsibility far greater than it is capable of carrying
out and the General Assembly has prevented the public from influencing the
regulations before they are promulgated. (Id. ¶¶272-273.)
Count VI alleges a claim under the Safe Drinking Water Act9 on the
basis that RAC’s failure to make changes to the PUCC by adopting the updated
lead-pipe requirement has put the Commonwealth out of compliance with federal
law, and CAC seeks to have RAC’s May 20, 2015 decision declared invalid on this
basis. CAC alleges in its amended petition for review that RAC’s failure to
9
This claim is under the Federal Safe Water Drinking Act (SWDA), 42 U.S.C. § 300f-300j-26,
rather than the Pennsylvania Safe Water Drinking Act (PASWDA), Act of May 1, 1984, P.L.
206, 35 P.S. §§ 721.1-721.17.
6
recommend adoption of the lead-pipe model code provision was unreasonable and
unlawful. (Id. ¶284.)
Count VII alleges that the May 20, 2015 decision of the RAC violates
the Environmental Rights Amendment (ERA) of the Pennsylvania Constitution.10
CAC alleges that the energy efficient provisions of the 2015 model codes would
greatly improve air quality within the Commonwealth and that RAC unreasonably
endangered air quality by declining to adopt these provisions and, therefore, RAC
violated the environmental rights of CAC and violated its duty as a trustee under
the ERA. (APR ¶¶289, 291.) CAC alleges that RAC was required “to conduct a
predecisional analysis to determine whether its decision to keep in place the 2009
building codes would cause an unreasonable actual or likely degradation of the air,
or any other environmental impact.” (Id. ¶293.) Furthermore, CAC alleges that
RAC has “a duty of prudence, which prohibits it from performing its duties
respecting the environment unreasonably,” and that “by offering no clear basis for
its decision not to adopt the 2015 revisions,” RAC performed its duties
unreasonably. (Id. ¶294.) Finally, CAC alleges that RAC has violated its trustee
duty by failing to treat all beneficiaries of the trust equally, as its “failure to adopt
the 2015 building code favors contractors and building owners at the expense of all
Pennsylvania residents who must breathe clean air.” (Id. ¶¶297-298.)
10
Article I, Section 27 of the Pennsylvania Constitution, known as the Environmental Rights
Amendment, 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.
7
RAC, L&I and the PBA (collectively, Respondents) have filed a series
of preliminary objections to CAC’s amended petition for review. Chief among
Respondents’ preliminary objections is an objection to CAC’s standing to pursue
its claims.11 Respondents contend that CAC’s entire amended petition for review
turns upon RAC’s failure to adopt additional provisions of the 2015 model
building codes, particularly the energy efficient provisions, and that CAC’s theory
fails to establish a substantial, direct and immediate interest but rather alleges
merely an attenuated chain of hypothetical consequences. CAC argues that it has
satisfied the necessary elements to establish standing and that although it has
alleged a chain of causation between the failure of building code adoption process
under the PCCA and the harm befalling its members, the chain does not make
causation any less direct and each link in the chain is close to certain to occur.
In Pennsylvania, the doctrine of standing is a prudential, judicially
created principle designed to winnow out litigants who have no direct interest in a
judicial matter. Pittsburgh Palisades Park, LLC v. Commonwealth, 888 A.2d 655,
659 (Pa. 2005) (holding that plaintiffs have neither traditional nor taxpayer
standing to challenge the Pennsylvania Race Horse Development and Gaming Act,
4 Pa. C.S. §§ 1101-1904); In re Hickson, 821 A.2d 1238, 1243 (Pa. 2003) (holding
that traditional standing principles are applicable to an appellant seeking review of
a district attorney’s decision to decline to approve a private criminal complaint).
11
In ruling on preliminary objections to a petition for review filed in our original jurisdiction,
this Court accepts as true all well-pled material facts set forth in the petition for review and all
inferences fairly deducible therefrom. Pennsylvania Independent Oil & Gas Association v.
Department of Environmental Protection, 135 A.3d 1118, 1123 (Pa. Cmwlth. 2015). However,
in ruling on preliminary objections, this Court is not required to accept as true any unwarranted
factual inferences, argumentative allegations, conclusions of law or expressions of opinion.
Pennsylvania Builders Association y, 4 A.3d at 225. Moreover, in addition to the well-pled
material facts, this Court may consider relevant statutes, public documents and uncontested facts.
Allegheny County Sportsmen’s League v. Rendell, 860 A.2d 10, 24 (Pa. 2004).
8
The issue of whether a plaintiff has standing to seek judicial relief is a question of
law that turns upon whether the plaintiff has demonstrated that it is aggrieved by
the action or matter it seeks to challenge; for standing to exist, the underlying
controversy must be real and concrete in order to prevent the courts of this
Commonwealth from issuing purely advisory opinions or decisions in the abstract.
Office of Governor v. Donahue, 98 A.3d 1223, 1228 (Pa. 2014) (holding that the
Office of the Governor had standing to bring a declaratory judgment action
challenging the Office of Open Record’s interpretation of Section 901 of the Right
to Know Law12, 65 P.S. § 67.901, which set forth the time period for response to a
record request); Fumo v. City of Philadelphia, 972 A.2d 487, 496 (Pa. 2009)
(holding that legislative standing is limited to instances where the action seeks to
address harm suffered in a legislator’s official capacity rather than those suffered
as a private citizen).
Our Supreme Court explained in the seminal case William Penn
Parking Garage, Inc. v. City of Pittsburgh, 346 A.2d 269 (Pa. 1975) (plurality),
that a plaintiff is aggrieved only where the plaintiff has been adversely affected and
has a substantial, direct and immediate interest in the matter at issue. Id. at 280-
286; see also Pittsburgh Palisades Park, LLC, 888 A.2d at 660. To demonstrate
that its interest is substantial, a plaintiff must show that its interest is distinct from
and surpasses the interest of all citizens in procuring compliance with the law.
Fumo, 972 A.2d at 496; William Penn Parking Garage, 346 A.2d at 282. To
demonstrate that its interest is direct, a plaintiff must show a causal connection
between the alleged violation of law that is the subject of the action and the alleged
harm to its interest. Fumo, 972 A.2d at 496; William Penn Parking Garage, 346
12
Act of February 14, 2008, P.L. 6, 65 P.S. §§ 67.101-67.3104.
9
A.2d at 282. To demonstrate that its interest is immediate, a plaintiff must show
that the causal connection is not remote or speculative. Fumo, 972 A.2d at 496;
William Penn Parking Garage, 346 A.2d at 283.
In absence of an injury to itself, an organization has standing to bring
an action as a representative of its members where it has alleged sufficient facts to
establish that at least one of its members has a substantial, direct and immediate
interest and is aggrieved by the challenged action. Robinson Township v.
Commonwealth, 83 A.3d 901, 921-922 (Pa. 2013)13 (holding that the Delaware
Riverkeeper Network had standing to challenge Act 13 of 2012, a statute amending
the Pennsylvania Oil and Gas Act,14 where of-record affidavits established that its
members resided in or owned property in zoning districts directly affected by the
challenged amendments to the statute); Parents United for Better Schools, Inc. v.
School District of Philadelphia, 646 A.2d 689, 690-692 (Pa. Cmwlth. 1994)
(holding that Parents United for Better Schools had organizational standing to
challenge a policy adopted by the School District of Philadelphia to address
adolescent sexuality and the spread of sexually transmitted diseases). Where an
organization has not shown that any of its members have standing, the fact that the
challenged action implicates the organization’s mission or purpose is not sufficient
to establish that it has standing as an aggrieved party. Robinson Township, 83
A.3d at 921-922; Spahn v. Zoning Board of Adjustment, 877 A.2d 1132, 1151 (Pa.
2009) (holding that the organization’s purpose of opposing the erection of illegal
billboards and fostering community development was insufficient to confer
13
Although Robinson Township was a plurality decision, Section A of the lead opinion, which
addressed standing among the various plaintiffs, was supported by the majority of the Court and
is therefore binding upon this Court.
14
Act of Feb. 14, 2012, P.L. 87, 58 Pa. C.S. §§ 2301–3504.
10
standing where none of its members resided within the vicinity of the proposed
sign).
In its amended petition for review, CAC alleges that once RAC issued
its May 20, 2015 recommendation, irreversible actions began taking place that led
directly and immediately to the harm averred by its members. (APR ¶135.) CAC
alleges that “[o]rganizations and entities already relying on the RAC’s decision of
particular concern to [CAC] are the Pennsylvania Public Utility Commission
(“PUC”), Pennsylvania Electrical Distribution Companies (“EDCs”), PJM
Interconnection [(PJM)], the City of Philadelphia, and Insurance Services Office
(“ISO”), among others. The RAC’s Decision is at this moment directly causing
these organizations to make decisions that are harmful to [CAC] and to the
Commonwealth.” (Id. ¶137.)
CAC alleges that the PUC is responsible for determining the energy
efficiency goals that all EDCs in the Commonwealth must adhere to and that one
criterion used to calculate energy savings is the PUCC. (Id. ¶¶138, 141.) CAC
alleges that if the full 2015 ICC model codes had been recommended for adoption
by RAC, rather than just 16 of these provisions, then the PUC would require more
energy efficiency from EDCs within the Commonwealth. (Id. ¶142.) CAC further
alleges that because the PUC has instead modeled its targets based upon less
energy efficient codes than those contained in the 2015 ICC model codes, the
EDCs will produce more energy to supply their customers and “this will, in turn,
necessarily create more polluting emissions in Pennsylvania from consumption of
fossil fuel for power generation—the majority of energy produced and used in
Pennsylvania comes from coal and natural gas.” (Id. ¶¶143-145.)
11
Next, CAC alleges that PJM, which is responsible for ensuring that
there is enough electricity generated to meet the projected demand in the
Commonwealth, uses “factors in energy efficiency by analyzing expected energy
efficiency that can be achieved through the triennial revisions to building codes
that the RAC reviews,” in order to construct PJM’s demand forecast. (Id. ¶¶147,
149.) CAC alleges that PJM “must find a greater supply of electricity for
Pennsylvania than it would need to under the more energy-efficient 2015 codes,”
and that the “increased energy demand will result in more air pollution in
Pennsylvania than would have been created if PJM were to forecast demand using
the 2015 building codes,” because “the vast majority of electricity produced in
PJM’s territory comes from power plants that use fossil fuels as an energy source.”
(Id. ¶¶151-152.)
Next, CAC alleges that the City of Philadelphia, Department of
Licenses and Inspections, may deny construction permit applications that comply
with the 2015 ICC model code provisions but not with the current iteration of the
PUCC, which consists of the 2009 ICC model code provisions with the 16
amendments recommended by RAC. (Id. ¶¶153-155.) As a result, CAC alleges,
applicants are either forced to resubmit applications that comply with the PUCC or
provide “a detailed explanation that describes how the ‘different’ codes meet or
exceed the 2009 code.” (Id. ¶156.) CAC alleges that by “not allowing, or severely
hampering the ability of construction to proceed using the more-efficient 2015
building codes, the RAC’s Decision is causing the buildings being designed now
and built after January 1, 2016, to use more energy that they would use otherwise.
In addition, it will limit the stock of energy-efficient buildings available to our
members throughout Philadelphia,” and result in more air pollution throughout the
12
state because “coal and natural gas are the dominant sources of fuel for electricity
and energy in Pennsylvania.” (Id. ¶¶158-159.) CAC also alleges that the City of
Philadelphia has applied to L&I to adopt the entire set of 2015 ICC model code
provisions for application within the City, and is likely to be unsuccessful in this
endeavor. (Id. ¶¶161-163.)
Next, CAC alleges that the higher a community is ranked by Building
Code Effectiveness Grading Schedule (BCEGS) data produced by insurers through
the ISO, the lower the insurance rates are in that community, and that the
effectiveness and enforcement of building codes within communities account for
18% of the BCEGS rating, which is also used as a component of the community
rating schedule used by the Federal Emergency Management Agency’s National
Flood Insurance Program’s Community Rating System to determine flood
insurance discounts in participating communities. (Id. ¶¶165-168.) CAC alleges
that it is likely that RAC’s recommendation to adopt only 16 of the 2015 ICC
model code provisions will result in a lower BCEGS rating for communities within
the Commonwealth, which is one of the most flood-prone states in the nation, and
that CAC members and municipalities and local agencies within the
Commonwealth will have to pay higher premiums for flood insurance,
property/casualty insurance or be unable to qualify for such insurance at all. (Id.
¶¶169-171.)15
15
CAC also argues in its brief that the Commonwealth, and derivatively RAC and L&I, have
admitted the directness of the causal chain it alleges because the Pennsylvania Department of
Environmental Protection issued a report entitled Draft 2015 Climate Change Action Plan
Update, wherein it stated that adoption by the Commonwealth of updated building codes is “the
single most cost effective and expeditious means of achieving reductions in energy-related
greenhouse gas emissions in the building sector.” Draft 2015 Climate Change Action Plan
Update at 163. However, this statement by the Department of Environmental Protection, to the
extent it is of any value in our analysis, speaks to issues of remedy rather than causation. We
13
Like the plaintiff organization challenging Act 13 of 2012 in Robinson
Township, CAC’s amended petition for review is supported by affidavits of its
members attesting to the deleterious effect of the alleged chain of events stemming
from RAC’s failure to adopt more energy efficient building codes. (APR, ¶¶201,
208, 217; APR Exhibits 15-17.) Ms. Jessica Krow, a member of CAC, lives in
Philadelphia and “is very concerned” that as a result of RAC’s failure she will be
made to suffer from “poor air quality in Philadelphia and throughout
Pennsylvania,” and “potentially pay more in electricity bills.” (APR, ¶¶199, 201.)
Ms. Krow “intends to make renovations on her home that will likely require
permits, and is fearful that it will be more difficult to use energy efficient codes.”
(Id. ¶203.) Furthermore, Ms. Krow “is an avid biker and walker….and when the
air quality is diminished she limits the time she spends outdoors.” (Id. ¶204.)
Matt Walker, a member of CAC, lives in Philadelphia and “is very
concerned,” that as a result of RAC’s failure to adopt more stringent energy
efficient building codes, “Philadelphia’s air quality will remain at levels that
damage human health, especially that of his children.” (Id. ¶¶206, 208.) Mr.
Walker “plans on moving in the near future to a home that will require renovations,
which will require permits and adherence to the UCC requirements then in effect—
the 2009 codes with the 16 amendments,” and is “concerned that compliance with
Pennsylvania’s UCC will require his new home to use more energy, and result in
more expensive utility bills and poorer indoor air quality for him and his family.”
(Id. ¶¶210-211.) Furthermore, Mr. Walker is “a gardener and an avid hiker,” who
“spends a great deal of time outdoors with his wife and two young children,” and is
“concerned that if the air quality does not improve, or worsens, he and his young
note that, although it is not determinative of our disposition in this matter, CAC has failed to
request relief that would remedy the harm it has alleged its members have suffered.
14
family will be forced to limit their exposure to the outdoors, activities they greatly
enjoy.” (Id. ¶¶212-214.)
Max Ojserkis, a member of CAC, works and recreates in Philadelphia,
and like Ms. Krow and Mr. Walker, Mr. Ojserkis is “very concerned that, due to
RAC’s failure to adopt more energy efficient building codes, he will be made to
suffer from poor air quality in Philadelphia and throughout Pennsylvania, and
potentially pay more in electricity bills.” (Id. ¶¶216, 217.) Mr. Ojserkis also
“plans on buying a home in the next five years. Whether this house is new or one
that will require reconstruction it will require permits and adherence to the UCC
requirements then in effect,” and Mr. Ojserkis “is concerned that compliance with
Pennsylvania’s UCC will require this home to use more energy, and result in more
expensive utility bills and poorer health standards for him and his family.” (Id.
¶¶219-220.) Furthermore, Mr. Ojserkis “enjoys camping, hiking, and biking,” and
“is concerned that if the air quality does not improve, or worsens, he will be forced
to limit his exposure to the outdoors, curtailing his participation in activities he
greatly enjoys.” (Id. ¶¶221-223.)
The mission of CAC is to “protect everyone’s right to breathe clean
air.” (APR ¶197.) CAC does not allege that it or any of its members are persons
regulated by the PUCC. Instead, CAC alleges that the likely harm to its members,
both increased costs and decreased air quality, can be traced to the absence of ICC
energy efficient model code provisions in RAC’s recommendation, which in turn
can be traced to the invalid process mandated by the PUCC. However, for a case
or controversy to exist, CAC must allege a particularized, concrete injury to itself
or its members that is causally traceable to RAC’s recommendation and the
building code adoption process mandated by the PCCA and that may be remedied
15
by the judicial relief requested. Moreover, the causal chain between the harm
alleged and the alleged illegal conduct may not be too attenuated. CAC has not
done so. Instead, the theory of harm alleged by CAC is premised upon collateral
consequences that can be logically, but not causally, traced to reliance by outside
actors upon, among other criteria, RAC’s recommendation to adopt only 16 of the
ICC model building code provisions and policy choices made by the General
Assembly in amending the PCCA. A logically persuasive argument regarding the
ripple effect of a single decision, however, is the province of the legislative branch;
to allege claims that are cognizable in this Court’s jurisdiction, CAC’s claims must
rest upon concrete harm caused by actions attributable to the Respondents.
While there is precedent for relaxing the general test for standing of a
petitioner to bring suit in instances where the challenged government action
regulates the conduct of persons other than the petitioner, most notably in instances
where the courts of this Commonwealth have held that taxpayers have standing
because “otherwise a large body of governmental activity would be unchallenged
in the courts,” we must conclude that this line of cases has no applicability to the
matter before us. See Parents United for Better Schools, 646 A.2d at 690-692;
compare Application of Biester, 409 A.2d 848, 852 (Pa. 1979) (applying taxpayer
standing).
In William Penn Parking Garage, our Supreme Court concluded that
the tax being challenged initially fell upon parking garage patrons, rather than the
owners who were seeking to challenge the tax in court; however, the Court
concluded that the tax was levied upon the very transaction between patrons and
owners of parking garages, rendering the causal connection between the challenged
action and the harm alleged by parking garage owners sufficiently close to be
16
immediate rather than remote because “the effect of the tax upon their business is
removed from the cause by only a single short step.” Id. at 289. In contrast, the
causal chain alleged by CAC in support of its challenge is premised upon a
dizzying array of actions taken or not taken by governmental and nongovernmental
actors once RAC issued its recommendation pursuant to the PCCA, and
presumably each time RAC issues a recommendation in the future, which may
impact actions taken or not taken by CAC members. These allegations are simply
far too remote to satisfy even a relaxed standard of causation maintained to ensure
that the most injurious and widespread government actions can be questioned by
the citizens of this Commonwealth. See United States v. Students Challenging
Regulatory Agency Procedures, 412 U.S. 669, 688 (1973).
We therefore hold that CAC is without standing to proceed and,
accordingly, dismiss its amended petition for review without prejudice.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge
17
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Clean Air Council, :
Petitioner :
:
v. : No. 502 M.D. 2015
:
Department of Labor and Industry :
of the Commonwealth of :
Pennsylvania and Uniform Construction :
Code Review and Advisory Council :
of the Commonwealth of Pennsylvania, :
Respondents :
ORDER
AND NOW, this 5th day of January, 2017, the preliminary objection to
standing of Clean Air Council in the above-captioned action filed by the Uniform
Construction Code Review and Advisory Council and the Department of Labor
and Industry of the Commonwealth of Pennsylvania is SUSTAINED.
Clean Air Council’s amended petition for review is hereby
DISMISSED without prejudice.
__________ ___________________________
JAMES GARDNER COLINS, Senior Judge