IN THE SUPREME COURT OF PENNSYLVANIA

MIDDLE DISTRICT

BOWFIN KEYCON HOLDINGS, LLC; CHIEF 

POWER FINANCE II, LLC; CHIEF POWER 

TRANSFER PARENT, LLC; KEYCON 

POWER HOLDINGS, LLC; GENON

HOLDINGS, INC.; PENNSYLVANIA COAL 

ALLIANCE; UNITED MINE WORKERS OF 

AMERICA; INTERNATIONAL 

BROTHERHOOD OF ELECTRICAL 

WORKERS; AND INTERNATIONAL 

BROTHERHOOD OF BOILERMAKERS, 

IRON SHIP BUILDERS, BLACKSMITHS, 

FORGERS AND HELPERS,

Appellees

v.

PENNSYLVANIA DEPARTMENT OF 

ENVIRONMENTAL PROTECTION AND 

PENNSYLVANIA ENVIRONMENTAL 

QUALITY BOARD,

Appellants

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No. 80 MAP 2022

Appeal from the Order of the 

Commonwealth Court at No. 247 

MD 2022 dated July 8, 2022

BOWFIN KEYCON HOLDINGS, LLC; CHIEF 

POWER FINANCE II, LLC; CHIEF POWER 

TRANSFER PARENT, LLC; KEYCON 

POWER HOLDINGS, LLC; GENON 

HOLDINGS, INC.; PENNSYLVANIA COAL 

ALLIANCE; UNITED MINE WORKERS OF 

AMERICA; INTERNATIONAL 

BROTHERHOOD OF ELECTRICAL 

WORKERS; AND INTERNATIONAL 

BROTHERHOOD OF BOILERMAKERS, 

IRON SHIP BUILDERS, BLACKSMITHS, 

FORGERS AND HELPERS

v.

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No. 86 MAP 2022

Appeal from the Order of the 

Commonwealth Court at No. 247 

MD 2022 dated June 28, 2022
[80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022]

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PENNSYLVANIA DEPARTMENT OF 

ENVIRONMENTAL PROTECTION AND 

PENNSYLVANIA ENVIRONMENTAL 

QUALITY BOARD

APPEAL OF: CITIZENS FOR 

PENNSYLVANIA'S FUTURE, SIERRA 

CLUB, CLEAN AIR COUNCIL, AND 

ENVIRONMENTAL DEFENSE FUND, 

Possible Intervenors

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BOWFIN KEYCON HOLDINGS, LLC; CHIEF 

POWER FINANCE II, LLC; CHIEF POWER 

TRANSFER PARENT, LLC; KEYCON 

POWER HOLDINGS, LLC; GENON

HOLDINGS, INC.; PENNSYLVANIA COAL 

ALLIANCE; UNITED MINE WORKERS OF 

AMERICA; INTERNATIONAL 

BROTHERHOOD OF ELECTRICAL 

WORKERS; AND INTERNATIONAL 

BROTHERHOOD OF BOILERMAKERS, 

IRON SHIP BUILDERS, BLACKSMITHS, 

FORGERS AND HELPERS

v.

PENNSYLVANIA DEPARTMENT OF 

ENVIRONMENTAL PROTECTION AND 

PENNSYLVANIA ENVIRONMENTAL 

QUALITY BOARD

APPEAL OF: CITIZENS FOR 

PENNSYLVANIA'S FUTURE, SIERRA 

CLUB, CLEAN AIR COUNCIL, AND 

ENVIRONMENTAL DEFENSE FUND, 

Possible Intervenors

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No. 88 MAP 2022

Appeal from the Order of the 

Commonwealth Court at No. 247 

MD 2022 dated July 8, 2022
[80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022]

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BOWFIN KEYCON HOLDINGS, LLC; CHIEF 

POWER FINANCE II, LLC; CHIEF POWER 

TRANSFER PARENT, LLC; KEYCON 

POWER HOLDINGS, LLC; GENON 

HOLDINGS, INC.; PENNSYLVANIA COAL 

ALLIANCE; UNITED MINE WORKERS OF 

AMERICA;INTERNATIONAL 

BROTHERHOOD OF ELECTRICAL 

WORKERS; AND INTERNATIONAL 

BROTHERHOOD OF BOILERMAKERS, 

IRON SHIP BUILDERS, BLACKSMITHS, 

FORGERS AND HELPERS,

Appellants

v.

PENNSYLVANIA DEPARTMENT OF 

ENVIRONMENTAL PROTECTION AND 

PENNSYLVANIA ENVIRONMENTAL 

QUALITY BOARD,

Appellees

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No. 89 MAP 2022

Appeal from the Order of the 

Commonwealth Court at No. 247 

MD 2022 dated July 8, 2022

CONCURRING STATEMENT

JUSTICE DONOHUE FILED: March 24, 2023

As a result of an equally divided Court, the order underlying Appellants’ appeal, 

which challenges the amount of the bond required in connection with its preliminary 

injunction, is affirmed by per curiam order. I offer this concurring statement to explain

why, in my view, Appellants’ appeal was rendered moot by virtue of Appellants’ failure to 

file a bond. 

Appellants (collectively “Bowfin”) filed a complaint in equity seeking declaratory 

and injunctive relief against Appellees (collectively “DEP”) regarding regulations that 

would permit the DEP to participate in the Regional Greenhouse Gas Initiative 
[80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022]

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(“Rulemaking”). At the same time, Bowfin sought a preliminary injunction enjoining the 

DEP from implementing the Rulemaking. A group of non-profit organizations (“Nonprofits”) filed a petition seeking to intervene in the litigation. Following a hearing, the trial 

court denied the Non-profits’ petition to intervene and granted Bowfin’s petition for a 

preliminary injunction. 

In conformance with Pennsylvania Rule of Civil Procedure 1531(b)(1),1 the order 

granting the preliminary injunction required Bowfin to file a bond within fourteen days of 

the order, the amount of which the Commonwealth Court set at $100 million. Bowfin 

unsuccessfully sought reconsideration of the bond amount before the Commonwealth 

Court. It is uncontested that Bowfin put forth no evidence during the preliminary injunction 

proceedings as to what it believed to be an appropriate amount for the bond or concerning 

its inability to secure the bond, nor did it request an opportunity to be heard to present 

such evidence in connection with their application for reconsideration. Although the 

Commonwealth Court denied Bowfin’s request to modify the amount of the bond, it 

provided Bowfin with an additional thirty days in which to file it. 

The DEP and the Non-profits timely appealed from the order granting the 

preliminary injunction. Their appeals are docketed at 80 MAP 2022 and 88 MAP 2022, 

respectively. On August 8, 2022, Bowfin filed the appeal challenging the amount of the 

1 “Except when the plaintiff is the Commonwealth of Pennsylvania, a political subdivision 

or a department, board, commission, instrumentality or officer of the Commonwealth or 

of a political subdivision, a preliminary or special injunction shall be granted only if (1) the 

plaintiff files a bond in an amount fixed and with security approved by the court, ... 

conditioned that if the injunction is dissolved because improperly granted or for failure to 

hold a hearing, the plaintiff shall pay to any person injured all damages sustained by 

reason of granting the injunction and all legally taxable costs and fees” Pa.R.C.P. 

1531(b)(1). 
[80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022]

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bond, which is docketed at 89 MAP 2022. On August 16, 2022, Bowfin filed an application 

asking this Court to reduce the bond to a nominal amount pending the resolution of its 

appeal. On September 8, 2022, following remand to the Commonwealth Court for an 

opinion and further briefing by the parties, this Court denied Bowfin’s application and 

ordered that the bond be filed by September 15, 2022.2 Bowfin did not file the bond. 

Bowfin’s failure to file the bond rendered the preliminary injunction a legal nullity 

and inoperative, Mamula v. United Steelworkers of America, 185 A.2d 595, 597 (Pa. 

1962), and consequently, renders the appeals therefrom moot. Indeed, this is how the

Court has disposed of the appeals filed by the DEP and the Non-profits. I would extend 

our finding of mootness to Bowfin. Despite being given multiple extensions of time in 

which to act, Bowfin failed to file the required bond by the deadline set by this Court. 

Thus, the issue presented by Bowfin on appeal was mooted because of its failure to file 

the requisite bond, just as the issues presented by the DEP and the Non-profits were. To 

conclude otherwise would afford consideration of Bowfin’s appeal while dismissing as 

moot the appeals filed by the DEP and the Non-profits. Doing so would have provided

Bowfin, who failed to comply with the orders from this Court and the Commonwealth 

Court, to file the bond, the benefit of appellate review while denying the same to the DEP 

and the Non-profits. This outcome not only contravenes mootness principles but also

renders an inconsistent and unfair result.

Justice Dougherty joins this concurring statement.

2 The order was supported by a majority of the Court then including former Chief Justice 

Baer. Justices Mundy and Brobson filed dissenting statements and Justice Dougherty 

noted his dissent. See Bowfin KeyCon Holdings, LLC v. Pa, Dep’t of Env’t Prot., 282 A.3d 

688, 689 (Pa. 2022).