IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Calpine Corporation, :
Tenaska Westmoreland :
Management, LLC and :
Fairless Energy, L.L.C., :
:
Petitioners :
:
v. : No. 357 M.D. 2022
: Argued: February 8, 2023
Pennsylvania Department of :
Environmental Protection :
and Pennsylvania :
Environmental Quality Board, :
:
Respondents :
BEFORE: HONORABLE RENÉE COHN JUBELIRER, President Judge
HONORABLE PATRICIA A. McCULLOUGH, Judge
HONORABLE ANNE E. COVEY, Judge
HONORABLE MICHAEL H. WOJCIK, Judge
HONORABLE ELLEN CEISLER, Judge
HONORABLE LORI A. DUMAS, Judge
HONORABLE STACY WALLACE, Judge
OPINION NOT REPORTED
MEMORANDUM OPINION
BY JUDGE WOJCIK FILED: November 7, 2023
Before the Court are the preliminary objections in the nature of a
demurrer (POs) of the Pennsylvania Department of Environmental Protection (DEP)
and the Pennsylvania Environmental Quality Board (EQB) (collectively,
Respondents) to the petition for review (PFR) filed by Calpine Corporation
(Calpine), Tenaska Westmoreland Management, LLC (Tenaska), and Fairless
Energy, L.L.C. (Fairless) (collectively, Petitioners),1 relating to Pennsylvania’s
participation in the Regional Greenhouse Gas Initiative (RGGI) based on regulations
promulgated by DEP, on behalf of EQB, referred to as the “Trading Program
Regulation” (Rulemaking).2 We dismiss the PFR as moot.
On July 12, 2022, Petitioners filed the instant seven-count PFR
alleging, inter alia, that the Rulemaking is an unconstitutional tax and fee. See PFR,
Count V. Accordingly, Petitioners asked this Court to “enter judgment in their favor
and against [Respondents]: (1) declaring that the [Rulemaking is] invalid, null, and
void; (2) permanently enjoining Respondents from implementing, administering, or
enforcing the [Rulemaking]; and (3) granting such further relief as this Court deems
just and appropriate.” Id. at 50. In response, on August 11, 2022, Respondents filed
the POs asserting, inter alia, that Petitioners’ claim that the Rulemaking constitutes
an unlawful tax fails to adequately state a claim for relief. See PO No. 4 - Demurrer.
Argument was conducted before an en banc panel of this Court, and the matter is
1
Petitioners are out-of-state corporations with principal places of business in Texas,
Nebraska, and Connecticut, that operate combined-cycle natural gas-fired power plants in
Pennsylvania. PFR, ¶¶5-7, 13-17.
2
The relevant history regarding the Rulemaking, and RGGI in general, is outlined in our
prior opinions granting preliminary injunctive relief in Ziadeh v. Pennsylvania Legislative
Reference Bureau (Pa. Cmwlth., No. 41 M.D. 2022, filed July 8, 2022), and Bowfin KeyCon
Holdings, LLC v. Pennsylvania Department of Environmental Protection (Pa. Cmwlth., No. 247
M.D. 2022, filed July 8, 2022); in our prior opinion sustaining the POs of the Pennsylvania
Legislative Reference Bureau, its Director, and the Director of the Pennsylvania Code and
Bulletin, and dismissing the petition for review filed by DEP’s Acting Secretary and EQB’s Acting
Director in Ziadeh v. Pennsylvania Legislative Reference Bureau (Pa. Cmwlth., No. 41 M.D. 2022,
filed January 19, 2023); and in our prior opinions granting declaratory relief and enjoining
Respondents from enforcing the Rulemaking in Ziadeh v. Pennsylvania Legislative Reference
Bureau (Pa. Cmwlth., No. 41 M.D. 2022, filed November 1, 2023), and Bowfin KeyCon Holdings,
LLC v. Pennsylvania Department of Environmental Protection (Pa. Cmwlth., No. 247 M.D. 2022,
filed November 1, 2023).
2
ready for disposition. However, upon review, we conclude that the PFR must be
dismissed as moot.3
As this Court has previously explained:
Petitions for declaratory judgments are governed by
the provisions of the [Declaratory Judgments Act (DJA)],
42 Pa. C.S. §§7531-7541. Although the [DJA] is to be
liberally construed, one limitation on a court’s ability to
issue a declaratory judgment is that the issues involved
must be ripe for judicial determination, meaning that there
must be the presence of an actual case or controversy.
Thus, the [DJA] requires a petition praying for declaratory
relief to state an actual controversy between the petitioner
and the named respondent.
Declaratory judgments are not obtainable as a
matter of right. Rather, whether a court should exercise
jurisdiction over a declaratory judgment proceeding is a
matter of sound judicial discretion. Thus, the granting of
a petition for a declaratory judgment is a matter lying
within the sound discretion of a court of original
jurisdiction. As the Pennsylvania Supreme Court has
stated:
The presence of antagonistic claims
indicating imminent and inevitable litigation
coupled with a clear manifestation that the
declaration sought will be of practical help in
ending the controversy are essential to the
granting of relief by way of declaratory
judgment. . . .
Only where there is a real controversy
may a party obtain a declaratory judgment.
3
See, e.g., Department of Public Welfare v. Kallinger, 615 A.2d 730 (Pa. 1990) (“AND
NOW, . . . the Court, sua sponte, dismisses this appeal as moot.”); Battiste v. Borough of East
McKeesport, 94 A.3d 418, 424 (Pa. Cmwlth. 2014) (“[W]e may sua sponte raise the issue of
mootness as ‘courts cannot “decide moot or abstract questions, nor can we enter a judgment or
decree to which effect cannot be given.”’ Orfield v. Weindel, 52 A.3d 275, 277 (Pa. Super. 2012)
(citation omitted)[.]”).
3
A declaratory judgment must not be
employed to determine rights in anticipation
of events which may never occur or for
consideration of moot cases or as a medium
for the rendition of an advisory opinion
which may prove to be purely academic.
Brouillette v. Wolf, 213 A.3d 341, 357-58 (Pa. Cmwlth. 2019) (citations omitted).
In addition, this Court has observed:
In general, an actual case or controversy must exist at all
stages of the review process, not merely when the case is
initiated. In re Gross, [382 A.2d 116, 119 (Pa. 1978)]. As
the Superior Court aptly opined:
An issue can become moot during the
pendency of an appeal due to an intervening
change in the facts of the case or due to an
intervening change in the applicable law. In
that case, an opinion of this Court is rendered
advisory in nature. An issue before a court is
moot if in ruling upon the issue the court
cannot enter an order that has any legal force
or effect.
In re D.A., 801 A.2d 614, 616 (Pa. Super. 2002)
(quotations and citations omitted).
Consumer Education and Protective Association v. Public Utility Commission, 847
A.2d 789, 794 n.9 (Pa. Cmwlth. 2004); see also In re Gross, 382 A.2d at 119 (“[A]n
actual controversy must be extant at all stages of review, not merely at the time the
complaint is filed.”) (citation omitted).
Moreover:
A federal court of appeals has explained:
The touchstone of the mootness inquiry is
whether the controversy continues to “touch
[] the legal relations of parties having adverse
legal interests” in the outcome of the case.
4
DeFunis v. Odegaard, 416 U.S. 312, 317
[(1974)] (per curiam) (quoting Aetna Life
Ins[urance] Co. v. Haworth, 300 U.S. 227,
240-41 [(1937)]). This “legal interest” must
be more than simply the satisfaction of a
declaration that a person was wronged.
Ashcroft v. Mattis, 431 U.S. 171, 172-73
[(1977)] (per curiam) (holding that a claim
for declaratory relief is moot when no
“present right” is involved and the primary
interest is the emotional satisfaction from a
favorable ruling).
It is well established that what makes a
declaratory judgment action “a proper
judicial resolution of a ‘case or controversy’
rather than an advisory opinion is [] the
settling of some dispute which affects the
behavior of the defendant toward the
plaintiff.” Hewitt v. Helms, 482 U.S. 755,
761 [(1987)]; see also Rhodes v. Stewart, 488
U.S. 1, 4 [(1988)] (per curiam) (explaining
that as the plaintiffs are no longer in prison,
their case against prison officials is moot).
Hence, this court has explained that a
“plaintiff cannot maintain a declaratory or
injunctive action unless he or she can
demonstrate a good chance of being likewise
injured [by the defendant] in the future.”
Facio v. Jones, 929 F.2d 541, 544 (10th Cir.
1991).
Green v. Branson, 108 F.3d 1296, 1299-1300 (10th Cir.
1997) (citation omitted).[4] See also Chasan v. Platt, 244
A.3d 73, 84 (Pa. Cmwlth. 2020), appeal denied, 253 A.3d
679 (Pa. 2021) (“At its core, the purpose of declaratory
relief is to address an imminent dispute or actual
4
See, e.g., Cole v. Pennsylvania Department of Environmental Protection, 257 A.3d 805,
813 (Pa. Cmwlth. 2021), appeal granted, ___ A.3d ___ (Pa., Nos. 312 and 313 EAL 2021, Nos.
415 and 416 MAL 2021, filed August 3, 2023) (stating that although the opinions of lower federal
courts are not binding on this Court, “such decisions in factually similar cases with persuasive
legal analysis may inform our disposition of the matter before us”).
5
controversy. The judicial acts that [the l]awyer complains
of are in the past, such that the declaration would not aid
in resolution of a current or imminent dispute.”).
Markham v. Wolf (Pa. Cmwlth., No. 176 M.D. 2015, filed October 20, 2021), slip
op. at 11-12.
As outlined above, in our prior opinions Ziadeh v. Pennsylvania
Legislative Reference Bureau (Pa. Cmwlth., No. 41 M.D. 2022, filed November 1,
2023), and Bowfin KeyCon Holdings, LLC v. Pennsylvania Department of
Environmental Protection (Pa. Cmwlth., No. 247 M.D. 2022, filed November 1,
2023), we declared that the Rulemaking is void, on the basis that it constitutes an
unconstitutional tax, and enjoined Respondents from enforcing it. Thus, the
declaratory and injunctive relief that is requested in the instant PFR has already been
granted, in part, and our disposition of any other claims that have been raised with
respect to the now void Rulemaking would be merely advisory. As a result, the PFR
should be dismissed as moot.
Indeed, with respect to an appeal that has been rendered moot, the
United States Supreme Court has noted:
The established practice of the Court in dealing with a civil
case from a court in the federal system which has become
moot while on its way here or pending our decision on the
merits is to reverse or vacate the judgment below and
remand with a direction to dismiss. . . . That procedure
clears the path for future relitigation of the issues between
the parties and eliminates a judgment, review of which
was prevented through happenstance. When that
procedure is followed, the rights of all parties are
preserved . . . .
United States v. Munsingwear, Inc., 340 U.S. 36, 39-40 (1950).5
5
See also Chambers v. American Federation of State, County, and Municipal Employees
International Union, AFL-CIO, 450 F. Supp. 3d 1108, 1116 (D. Or. 2020), aff’d sub nom. Masuo
(Footnote continued on next page…)
6
Likewise, at present, there is no chance that Petitioners will be harmed
by Respondents’ implementation, administration, or enforcement of the void
Rulemaking. However, Petitioners may seek any necessary future declaratory or
injunctive relief if DEP or EQB seeks to implement, administer, or enforce a
rulemaking that is not void.
Accordingly, Petitioners’ PFR is dismissed as moot.
MICHAEL H. WOJCIK, Judge
Judge Fizzano Cannon did not participate in the decision of this case.
v. American Federation of State, County and Municipal Employees International Union, AFL-
CIO, (9th Cir., No. 20-35355, filed May 25, 2021) (citations omitted), in which a federal district
court stated, in pertinent part:
The Ninth Circuit has “routinely deemed cases moot where ‘a new
law is enacted during the pendency of an appeal and resolves the
parties’ dispute.’” This rule applies with equal force to intervening
changes in the applicable case law. For example, in Aikens [v.
California, 406 U.S. 813 (1972)], the Supreme Court dismissed as
moot a California prisoner’s pending federal constitutional
challenge to California’s death penalty statute “based on the
intervening decision of the California Supreme Court[,]” which had
“declared capital punishment in California unconstitutional under
. . . the state constitution.” 406 U.S. at 814[.] The petitioner in that
case “no longer face[d] a realistic threat of execution, and the issue
on which certiorari was granted-the constitutionality of the death
penalty under the Federal Constitution-[was] now moot in his case.”
Id.
7
IN THE COMMONWEALTH COURT OF PENNSYLVANIA
Calpine Corporation, :
Tenaska Westmoreland :
Management, LLC and :
Fairless Energy, L.L.C., :
:
Petitioners :
:
v. : No. 357 M.D. 2022
:
Pennsylvania Department of :
Environmental Protection :
and Pennsylvania :
Environmental Quality Board, :
:
Respondents :
ORDER
AND NOW, this 7th day of November, 2023, the Petition for Review
filed in the above-captioned matter is DISMISSED as moot.
__________________________________
MICHAEL H. WOJCIK, Judge