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.

PENNSY LVANIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION AND
PENNSYLVANIA ENVIRONMENTAL QUALITY BOARD,

Appellants :

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

: 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, :

:

:

:

:

:

:

:

:

:

: 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]

2 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 :

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

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 :

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

: 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]

3 APPEAL OF: CITIZENS FOR PENNSYLVANIA'S FUTURE, SIERRA CLUB, CLEAN AIR COUNCIL, AND ENVIRONMENTAL DEFENSE FUND,

Possible Intervenors :

:

:

:

:

:

:

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 INTERNATI ONAL BROTHERHOOD OF BOILERMAKERS, IRON SHIP BUILDERS, BLACKSMITHS, FORGERS AND HELPERS,

Appellants

v.

PENNSYLVANIA DEPARTMENT OF
ENVIRONMENTAL PROTECTION AND
PENNSYLVANIA ENVIRONMENTAL QUALITY BOARD,

Appellees :

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

:

: No. 89 MAP 2022

Appeal from the Order of the
Commonwealth Court at No. 247 MD 2022 dated July 8, 2022.

CONCURRING AND DISSENTING STATEMENT

JUSTICE MUNDY FILED: March 24, 2023

I join the Court’s action in submitting the appeal at 86 MAP 2022 on the currently

filed briefs. My disagreement with the Court’s present disposition relates to its summary[80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022]

4 affirmance of the Commonwealth Court’s order in the appeal at 89 MAP 2022 and, by

extension, the dismissal as moot of the appeals at 80 MAP 2022 and 88 MAP 2022

.

In 8 9 MAP 2022, the plaintiffs challenge the Commonwealth Court’s preliminary

injunction order to the extent the court set bond at $100 million. Th is Court now summarily

affirms the Commonwealth Court’s order and dismisses the related appeals on grounds

of mootness , presumably because the preliminary injunction never went into effect

.
Although App ellants did not post the bond and hence the injunction was never enforced,

if the bond amount was in error and thus void ab inito

, the failure to post it could not have

validly impinged upon such enforcement. In my view, therefore, we may still address th e

topic

– and we should either remand for imposition of a nominal bond or permit oral

argument on the issue

.
I previously found the $100 million bond amount to be excessive and to represent

an abuse of discretion, particularly as the Commonwealth Court det ermined that

Appellants raised a substantial possibility that the actions of the Department of

Environmental Protection (DEP) were unconstitutional , thereby result ing in per se

irreparable harm

. See Bowfin Keycon Holdings, LLC v. DEP , 282 A.3d 688, 69 1

- 92 (Pa.

2022) (mem.) (Mundy, J., dissenting) . Furthermore, and as Justice Brobson explained,

the re was no evidence DEP would sustain any actual damages by delaying its

participation in the quarterly auctions involved until such time as the legal ity of its actions

could be tested in the courts

. See id . at 693 (Brobson, J., dissenting). Rather, the

preliminary injunction would at most impose on th e agency a temporary opportunity cost

which is “ the price society is willing to pay to ensure the government acts within the

bounds of the law .” Id . at 691 (Mundy, J., dissenting) ; see also id

. (“ DEP is not a private,

profit

- seeking entity; like all government agencies, it is an arm of the state tasked with[80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022]

5 fulfilling certain functions in the public i nterest with the public funds that have been

allocated for its use. ”).

Finally, I expressed that the se opportunity costs were fictitious in any event . This

is because it was uncontested that DEP could not have participated in the September

2022 Regional G reenhouse Gas Initiative (RGGI) auction due to a preliminary injunction

issued in a separate matter where no bond was required. See Ziadeh v. Pa. Legislative

Reference Bureau , No. 41 M.D. 2022 , Order (Pa. Cmwlth. July 8, 2022 ) . As a

consequence, any harm to DEP did not arise “by reason of granting the injunction” in the

present matter , as is necessary to give rise to the bond requirement under Rule of Civil

Procedure 1531(b) (1). Because I did not previously elaborate on this latter point, I will do

so now.

In its opinion in support of its prior order in this matter , the Commonwealth Court

acknowledged that, in light of the Ziadeh litigation

, DEP could not have participated in the

September 2022 auction. Although this meant that, as a factual matter, DEP’s opportunity

costs were not “sustained by reason of granting the injunction,” Pa.R.Civ.P. 1531(b)(1)

,

the court justified its action on the basis that “each case stands on its own

, ” and hence, it

was required to “apply the applicable Rules of Civil and/or Appellate Procedure in each

case.” Bowfin Keycon Holdings, LLC v. DEP , No. 257 M.D. 2022, slip op . at 8 (Pa.

Cmwlth. Aug. 25, 2022). The court thus concluded there was “no relevance” to the fact

a preliminary injunction had been issued in the Ziadeh case. Id

. In so holding, the court

did not deny that, factually speaking, Rule 1531(b)(1)’s precondition was not met.

While it is certainly tempting to view each case in isolation, as the Commonwealth

Court chose to do here, a legitimate question arises whether there is any basis in Rule

1531’s text or in case precedent to support that approach.[80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022]

6 T his Court ’ s rules are int erpreted by reference to the Statutory Construction Act

.

S ee In re Carney , 79 A.2d 490, 505 (Pa. 2013) . That enactment favors application

according to the statutory text where its meaning is plain

. See 1 Pa.C.S. § 1903(a);

1921(b); see also Koken v. Rel iance Ins. Co. , 893 A.2d 70, 82 (Pa. 2006) (where statutory

language is plain it cannot be overridden in pursuit of a contrary spirit or purpose). As

applied presently , t he question of whether the damages as asserted are “sustained by

reason of granting t he injunction” is a factual one , and I am skeptical of the

Commonwealth Court’s resort to a legal fiction

– that “each case stands on its own”

– to

avoid ruling according to such facts. T he court did not reference any interpretive principle,

case precedent

, or other authority to support reading such a directive into the Rule , and I

am unaware of any. Perhaps the court’s stance can be justified on the basis that the

record before it related primarily to the instant matt er and not the Ziadeh litigation. But

the court surely could have taken judicial notice of the record and its own rulings in the

parallel litigation before it. See generally Pa.R.E. 201 (relating to judicial notice of

adjudicative facts).

It is also poss ible

, although the court did not articulate this

, that the court was

concerned about the need for a substantial bond in the event the injunction in Ziadeh

were to be dissolved or overturned on appeal

– and indeed this is the basis on which DEP

currently de fends the court’s action for purposes of this appeal. See Brief at 20

. If that

were to occur, however, the court could then have entertained a motion by DEP to modify

the injunction so as to change the amount of the bond , and any refusal to modify the or der

would have been immediately appealable. S ee Pa.R.A.P. 311(a)(4)

.
For my part, I would favor application of Rule 1531 ’s plain text unless and until this

Court is convinced otherwise through developed advocacy and sound interpretive

methodology

. Such application would, in my view, have led the Commonwealth Court to[80 MAP 2022, 86 MAP 2022, 88 MAP 2022, 89 MAP 2022]

7 impose a nominal bond in this case. I therefore respectfully dissent from this Court’s

present decision to affirm the Commonwealth Court’s order and to dismiss the relate d

appeals as moot

.
Justice Brobson joins this concurring and dissenting statement.