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 E LECTRICAL WORKERS; AND INTERNATIONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS,

FORGERS AND HELPERS

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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 DEPARTME NT 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

B ROTHERHOOD 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

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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 m oot 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 partic ipate 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 (“Non

profits”) filed a petition seeking to i ntervene 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 Com monwealth

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 opport unity 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 fi le 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, 20 2 2, Bowfin filed the appeal challeng ing 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 Augu st 16, 20 22 , 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, th is 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 render ed the preliminary injunction a legal nullity

and inoperative

, Mamula v. United Steelw orkers of America , 185 A.2d 595, 597 (Pa.

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

Court has disposed of the ap peals filed by the DEP and the Non

- profits. I would extend

our finding of mootness to Bowfin

. Desp ite 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 c o nsider ation of Bowfin’s appeal while dismiss ing as

moot the appeals f iled 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 cont ravenes mootnes s 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 di ssenting 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).