Commonwealth v. Commonwealth

LARSEN, Justice,

concurring.

I join in the majority opinion. There is no question that the Pennsylvania Game Commission has standing under our constitution, statutes and caselaw to challenge the issuance of a solid waste permit by the Department of Environmental Resources (DER) for the establishment and operation of a solid waste landfill, where said landfill could potentially affect wetland property (known as Siegel Marsh) maintained and protected by the Commission as a waterfowl refuge. The Commission is a Commonwealth agency explic*131itly charged by statute with the obligation and authority to regulate, protect, manage and preserve the game or wildlife of this Commonwealth and the lands and waters entrusted to the care of the Commission, specifically including (but not limited to) the enforcement of the Dam Safety and Encroachments Act where an encroachment or water obstruction would negatively impact upon a swamp, marsh or wetland. 34 Pa.C.S.A. § 2161(c).

As one of this Commonwealth’s trustees of our natural resources and the public estate under Article I, section 27 of our Constitution, the Commission must have standing to take whatever legal action is necessary and appropriate to “conserve and maintain” our “clean air, pure water,” and “the natural, scenic, historic and esthetic values of the environment” where threats to game or wildlife and to waterways and lands acquired and managed by the Commission arise.

I also agree with the majority that, under our standard of review, the decision of the Environmental Hearing Board affirming the grant of a solid waste permit by DER should be affirmed. That decision was adequately supported by the record, did not commit an error of law and did not violate any constitutional rights. I write separately, however, to emphasize that the Commission’s standing does not cease once the solid waste permit has been granted and affirmed on appeal.

On the contrary, the Commission retains the authority and the obligation to protect, preserve and maintain the Siegel Marsh wetlands and its inhabitants. Should the Commission, at some point in the future, detect environmental damage to Siegel Marsh or its inhabitants which, in the Commission’s reasoned opinion, is caused by operation of the landfill, the Commission will have standing to petition DER to suspend or modify its landfill permit in accordance with the provisions of the Solid Waste Management Act, see section 503(c) and (e), Act of July 7, 1980, P.L. 380, No. 97, *13235 P.S. § 6018.503(c) and (e), or to take appropriate action in the courts of this Commonwealth to abate pollution and/or nuisances, see id at section 607, 35 P.S. § 6018.607.

PAPADAKOS, J., joins in this concurring opinion.