Funk v. Commonwealth, Department of Environmental Protection
71 A.3d 1097
| Pa. Commw. Ct. | 2013Background
- Funk filed a petition for rulemaking with DEP to have the EQB regulate fossil fuel CO2 emissions and report annually on statewide greenhouse gas emissions.
- DEP notified Funk that the petition failed to satisfy submission requirements and identified three grounds for rejection.
- Funk then filed a Petition for Review in the Commonwealth Court seeking to require DEP to submit the petition to the EQB, and separately pursued an EHB appeal challenging DEP’s decision.
- DEP moved to dismiss the Petition for Review on the basis of exhaustion of administrative remedies.
- The court held that Funk must exhaust her administrative remedies by appealing to the EHB before seeking judicial review, except for facial constitutional challenges to a statute.
- The court sustained DEP’s preliminary objections and dismissed Funk’s Petition for Review without prejudice to pursue constitutional arguments in the EHB appeal and in a petition for review of any EHB decision.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Is Funk’s Petition for Review barred by exhaustion of remedies? | Funk argues constitutional challenges justify bypassing exhaustion. | DEP contends exhaustion required via EHB appeal before court review. | Yes; dismissal for failure to exhaust remedies. |
| Does an exception to exhaustion apply where the constitutional challenge is facial to the statute? | Lehman exception applies to facial constitutional challenges to the statute. | The exception does not apply to challenges to the statute's application in a specific case. | No; exception does not apply here because challenges target application, not facial validity. |
| Are Funk's constitutional challenges to DEP’s application of the statutes exempt from exhaustion? | Constitutional claims attack DEP’s application; should be entertained without EHB exhaustion. | Constitutional issues must be raised in the EHB appeal concerning application. | No; must exhaust via EHB before court review. |
| May Funk raise unresolved constitutional challenges in the EHB appeal and later in court after dismissal? | Constitutional arguments can be pursued in EHB and on petition for review of EHB decision. | The court should dismiss now and permit constitutional issues to be raised in the EHB process. | Yes; the court notes dismissal is without prejudice to raise issues in EHB proceedings and subsequent review. |
Key Cases Cited
- Lehman v. Pennsylvania State Police, 839 A.2d 265 (Pa. 2003) (facial challenges to enabling legislation not require exhaustion)
- Empire Sanitary Landfill, Inc. v. Department of Environmental Resources, 684 A.2d 1047 (Pa. 1996) (exhaustion appropriate for administrative challenges raising policy questions)
- Faldowski v. Eighty Four Mining Co., 725 A.2d 843 (Pa.Cmwlth. 1998) (administrative exhaustion required unless facial constitutional challenge)
- Chambers Development Co. v. Department of Environmental Resources, 532 A.2d 928 (Pa.Cmwlth. 1987) (limits on raising issues not presented to agency)
- Tire Jockey Service, Inc. v. Department of Environmental Protection, 915 A.2d 1165 (Pa. 2007) (recognizes exhaustion as prerequisite to judicial review)
- Lehman v. Pennsylvania State Police, 576 Pa. 365 (Pa. 2003) (administrative remedies should be exhausted except facial challenges)