00:00 - Good morning everyone.

00:03 - Welcome to our first day of oral argument here in Harrisburg at the,

00:08 - beautiful, majestic State Capitol building.

00:12 - As architect Joseph Houston envisioned this building to be a palace of art,

00:17 - I highly encourage everyone in attendance to visit our rotunda,

00:22 - legislative chambers, and Governor's Reception Room

00:25 - with an eye toward the beautifully crafted, crafted artwork,

00:29 - particularly the famous Violet Oakley murals,

00:34 - which were installed in 1927, which adorn this courtroom.

00:39 - Violet Oakley was the first female artist to receive a major public art commission.

00:45 - She devoted 25 years of her life to this project,

00:50 - and her murals on the evolution of law

00:52 - are simply spectacular.

00:55 - We also marvel at the 52 million

00:58 - pound terracotta dome above the rotunda.

01:01 - A one third scale model of the dome of Saint Peter's Basilica

01:06 - in Rome, on top of which is a 15ft

01:10 - gilded statue named Commonwealth.

01:14 - Houston intentionally placed this courtroom on a

01:18 - on the fourth floor, with the legislative and executive chambers on the second

01:23 - to physically separate and symbolically indicate

01:28 - that the judiciary is an equal branch of government.

01:37 - The majesty of our courtroom

01:39 - is designed to remind us all of the seriousness

01:43 - and importance of the work we are here to do.

01:47 - Before I call

01:49 - the first case, I would like to

01:52 - mention a few things to the attorneys

01:55 - who may not have argued before us

01:58 - before,

02:01 - appellant's counsel, please approach the podium when your case is called.

02:05 - I will then give a short summary of the case.

02:08 - You may then begin by stating your name and the party you represent.

02:12 - And please introduce your co-counsel to the court.

02:16 - The justices are familiar with your cases, so I ask that you avoid

02:20 - any unnecessary recitation of facts or procedural history,

02:25 - and instead focus on the main issues on which we granted review.

02:30 - Counsel is welcome to rely on their briefs for any particular issues.

02:36 - Remember that we do not allow rebuttal

02:39 - in cases where there are multiple parties represented by separate counsel.

02:44 - You should avoid repeating the same arguments as prior counsel.

02:48 - Please try not to interrupt the justices when they are asking you questions.

02:54 - Justice, this question is not meant to trip you up.

02:57 - It just indicates there are particular issues we want to explore further.

03:02 - While there's no set time limit for oral argument, I will advise counsel

03:07 - when the court is satisfied that all of its questions have been answered.

03:11 - And at that time, I ask that you conclude your argument.

03:15 - Welcome to the Harrisburg courtroom of the Pennsylvania Supreme Court

03:18 - for oral arguments from the court's May 2025 session.

03:21 - I'm Casey Coyle, an appellate lawyer at the law firm of bats Callan.

03:25 - Joined today by my friend and colleague Kevin Hall, litigation partner

03:28 - at the law firm of Tucker Rensburg.

03:30 - We're delighted to be with you today.

03:31 - This promises to be an exciting argument session.

03:35 - The first case you're going to hear argument in is both in Keycard Holdings,

03:38 - LLC at all, versus Pennsylvania Department of Environmental Protection at all,

03:43 - which involves the validity of a regulation.

03:45 - In 2019, Pennsylvania's then governor Tom Wolf issued an executive order

03:50 - directing the Pennsylvania Department of Environmental Protection

03:53 - and the Pennsylvania Environmental Quality Control Quality Board

03:57 - to develop a proposed

03:58 - rule making to establish a carbon dioxide trading program pursuant

04:02 - to a multi-state regional Greenhouse Gas Initiative, or Reggie for short.

04:07 - 11 other states currently participate in the initiative,

04:10 - with the goal of reducing carbon dioxide emissions.

04:13 - The Environmental Quality Board published the rule

04:15 - making the 2022, and it sets out a complex scheme.

04:20 - The rule rule making requires operators of Pennsylvania

04:22 - based fossil fuel fired electric generating units, or IGS,

04:27 - of a certain nameplate capacity, to obtain an allowance

04:31 - to offset each ton of carbon dioxide their plants emit.

04:34 - Those allowances must either be purchased

04:37 - through regional allowance auctions or traded on a secondary market.

04:40 - The rule making provides

04:42 - any proceeds received by the Commonwealth from the auctions well, as any civil

04:45 - fines and penalties for excess emissions will be deposited into the Clean Air Fund.

04:51 - Multiple litigations ensued, challenging the validity of the reg

04:54 - rule making and seeking, inter Alia, preliminary and permit relief.

04:58 - Each case was initiated in the Penn State Commonwealth Court

05:01 - as part of its original jurisdiction, which were.

05:03 - The Commonwealth Court sits as a trial court and not an appellate court.

05:07 - The Commonwealth Court held a preliminary junction hearing to address

05:10 - the various challenges after hearing testimony and argument.

05:13 - Commonwealth court

05:14 - enjoined implementation of the reg rule making on a preliminary basis.

05:18 - Thereafter, several party filed applications

05:21 - for summer relief, which is akin to a motion for summary judgment.

05:24 - In resolving these applications,

05:26 - the Commonwealth Court held that the rule making constituted a tax

05:29 - and therefore violated the Pennsylvania Constitution.

05:32 - The Commonwealth Court thus avoided the reg rule making

05:34 - and enjoin the Commonwealth from enforcing it permanently.

05:37 - The Commonwealth appealed to the Pennsylvania Supreme Court.

05:41 - The Commonwealth argues in

05:42 - its briefs that the Commonwealth Court's decision should be overturned.

05:46 - The Commonwealth contends that the reg rule making is a permissible

05:49 - regulation under the Pennsylvania Air Pollution Control Act, or EPA,

05:54 - because it directly places

05:55 - a cap on the total emissions of a pollutant in the atmosphere

05:59 - and all allowances generated by the Commonwealth's participation

06:02 - in the Oxygen Support and ACPa air pollution control program.

06:07 - The Commonwealth further maintains that because requiring regulated use

06:11 - to purchase an allowance to emit carbon dioxide supports an EPA

06:15 - air pollution control program, it is a fee and not a tax.

06:19 - The Commonwealth reversed the Commonwealth Court's contrary finding

06:22 - that the rule making imposes a tax depart from precedent.

06:26 - Interveners clear counsel, the Sierra Club and Citizens

06:29 - for Pennsylvania's Future raise a similar argument in their brief.

06:33 - In contrast, a coalition consisting of electric energy generation companies,

06:38 - labor unions and a nonprofit argue in their brief that the Commonwealth

06:42 - correctly determined that the charges imposed on energy use by the Reggie

06:46 - rule making amount to taxes rather than fees.

06:50 - The coalition also contends that the Commonwealth lacked

06:52 - legislative authorization to promulgate the rule making, which,

06:55 - according to them, is a separate basis for Furman's.

06:58 - The coalition further maintains that even assuming our Undo

07:02 - that the Air Pollution Control Act

07:03 - could be read to authorize a major rule making,

07:06 - such a delegation would violate the Pennsylvania Constitution.

07:09 - Non delegation mandate.

07:11 - A group of state senators and a separate group of state representatives

07:15 - events are similar arguments in their respective briefs.

07:19 - Let's watch and listen to the oral argument in both in Quicken Holdings,

07:23 - LLC at all versus Pennsylvania Department of Environmental Protection, et al.

07:29 - Honor, your honor, may it please the court.

07:31 - Thomas Hazlitt, on behalf of Jessica Shirley.

07:35 - As the acting Secretary for the Department of Environmental Protection,

07:38 - and as chair of the Environmental Quality Board,

07:41 - and on behalf of the department, and the board.

07:45 - With me today is my partner, Matt White.

07:47 - And also with us, is

07:50 - Jessica O'Neill and Emma Bast.

07:54 - Miss O'Neil is arguing on behalf of the nonprofit parties

07:57 - that are the appellants in case numbers 110 and 111.

08:03 - With the court's permission, miss O'Neill and I are going to divide our argument.

08:08 - I'm going to address the Commonwealth court's erroneous conclusion

08:11 - that the Reggie Regulation CO2 emission allowances

08:16 - are not regulatory fees, but are instead a tax.

08:20 - I'll also address, and perhaps briefly, the alternate grounds

08:23 - for deferments that the appellees raised in their briefs.

08:27 - Miss O'Neill is going to present argument on behalf

08:30 - of her clients with respect to the Environmental Rights Amendment.

08:33 - All right. Thank you. Thank you. Ma'am.

08:37 - Stepping back briefly.

08:39 - The issue before the court is that when the General Assembly passes legislation

08:44 - that tells the executive branch to do something, eliminate air pollution,

08:49 - and the General Assembly gives tools to the executive branch to carry out

08:53 - that directive, for example, to establish fees

08:56 - in support of an air pollution control program.

08:59 - And the executive branch goes through an exhaustive regulatory process,

09:03 - which included active participation by members of the General Assembly

09:07 - and review by the General Assembly as a whole.

09:10 - Should individual members of the legislative branch

09:13 - who lost the policy argument, and energy industry parties

09:17 - that are subjects of the regulation who understandably don't want to be regulated,

09:21 - be able to stop the executive branch from carrying out its statutorily

09:25 - mandated duties

09:26 - by claiming that the regulation encroaches on the legislative branches power.

09:31 - That's this case.

09:32 - That's what's happening in this case.

09:33 - And the answer should be no.

09:35 - And Commonwealth Court aired when it concluded otherwise.

09:40 - I'm going to

09:41 - start with the one issue on which,

09:44 - the Commonwealth Court found against the department and the board,

09:47 - and that's this issue of a regulatory fee versus a tax.

09:51 - So what are these allowances?

09:55 - Starting with the text of the authorizing statute, the Air Pollution Control Act.

09:59 - Section 6.3 A of the of the access.

10:03 - This section author also authorizes the board.

10:06 - That's the environmental Review Board.

10:08 - To establish.

10:10 - I'm sorry.

10:10 - Authorizes the board by regulation to establish fees

10:14 - to support the air pollution control program authorized by this act.

10:19 - This is the statutory basis cited in the rule making record.

10:23 - And this is exactly what the allowances are doing.

10:26 - They are imposing fees on the regulated entities,

10:30 - that support the air pollution control program.

10:33 - Counsel, can I can I stop you right there?

10:35 - Because I want to be sure I'm clear on on a point

10:37 - you're relying upon at the section 6.3.

10:40 - Yes, sure.

10:41 - Currently, there's 11 states that are members of this Reggie requirement.

10:44 - Is that correct?

10:45 - That's right.

10:47 - Of those 11 states, how many have entered Reggie without legislative approval?

10:51 - Just Pennsylvania, Your Honor. Okay.

10:53 - And just so I'm clear again, section 6.3,

10:56 - that when you're talking about authorizes

10:59 - the executive, as you mentioned,

11:02 - to reduce air pollution.

11:04 - But I believe the language that you it's not certain the states that cooperate with

11:08 - appropriate agencies of the United States or other interstate agencies with respect

11:12 - to the control, prevention, abatement or reduction of air pollution

11:17 - and, where appropriate, formulate interstate air pollution control compacts

11:21 - or agreements for the submission thereof to the General Assembly

11:25 - was the Reggie

11:28 - enactment of Pennsylvania enrollment?

11:30 - Was was that ever submitted to the General Assembly for review or approval?

11:34 - So, it was submitted

11:37 - through the Regulatory Review Act process, Your Honor.

11:40 - And did the General Assembly approve it?

11:42 - It did not. It did not.

11:45 - Stop the regulation from going into effect, per the it wasn't my question.

11:50 - Was it submitted to them and did they approve it?

11:52 - They did not approve it, your Honor.

11:53 - However, the Regulatory Review Act, which is the statute that the General.

11:57 - Assembly passed to have a role in review

12:01 - of regulations, had has specified steps that must be taken.

12:05 - That's the General Assembly can stop a regulation pass

12:07 - by an executive agency from going into effect.

12:10 - And the General Assembly did not do so.

12:14 - You're assuming

12:15 - that an interstate compact is a regulation.

12:18 - I'm sorry, Your Honor.

12:18 - You're assuming that an interstate compact is a right.

12:21 - I mean, this is this is

12:22 - this is a tough answer that you're giving to justice McCaffrey,

12:25 - because the Regulatory Review Act was never intended to approve

12:29 - interstate compacts.

12:31 - It is it is it is the scope of the General Assembly's authority.

12:36 - There is to object to whether the statute, whether the regulation is consistent

12:40 - with the statute, not not to approve or disapprove interstate compacts.

12:45 - There's nothing in the Regulatory Review Act about that.

12:47 - Agreed, Your Honor.

12:48 - And that was going to be the second point I was going to make to

12:50 - justice McCaffrey, Your Honor, which is that, the Reggie regulation,

12:55 - Pennsylvania's Reggie regulation, is being,

12:58 - promulgated under section 5.3, which is which is not the section

13:03 - that has to do with, entering into interstate compacts.

13:07 - And in fact, this issue of an interstate

13:09 - compact was an issue that was raised by the, appellees below,

13:14 - in the Commonwealth Court found that there is no interstate compact here,

13:18 - that there is no an agreement, there is no contract

13:21 - that's between Pennsylvania and any of the other, Reggie participating states.

13:26 - And it didn't even rise to the level of a substantial legal question

13:29 - for purposes of, for purposes of granting a preliminary injunction.

13:36 - It didn't find that it was an issue that was worthy of discussion on summer relief.

13:40 - And so,

13:41 - our argument is that this is not an interstate compact.

13:44 - This is, collaboration and cooperation among states.

13:48 - And each of the states have independently entered into Reggie,

13:54 - many of them by by legislation in Pennsylvania's case,

13:58 - through the regulatory process pursuant to the Air.

14:01 - Pollution Control Act.

14:04 - So, as I said,

14:06 - the fees themselves are within the power granted to the agency

14:11 - under section 6.3 of the Air Pollution Control Act.

14:15 - And the department and the and the board are not arguing that

14:18 - that's the that's the end of this court's or the lower court's analysis.

14:22 - But it is worth noting

14:25 - that these, the proceeds from these auction, from the auctions

14:29 - of these allowances are consistent with what the authorized statute says.

14:34 - The, case law

14:36 - that we've cited and that the and that the other parties have cited,

14:41 - provides a

14:42 - series of guidelines or principles or factors.

14:46 - I don't think it's fair to say that there is any sort of bright line test

14:49 - for determining what is a tax versus what is a fee

14:52 - under any of the case law that that folks have cited.

14:55 - So with regard if the injunction had not been in play,

14:59 - do you have an understanding as to the aggregate moneys

15:01 - that would have been collected under the quote unquote, fee?

15:04 - They, well, I don't have,

15:07 - we don't know what the actual amount of fees would have been.

15:11 - So I can't give the court a number what I can say is that,

15:16 - in a pre enforcement challenge, which is what this is,

15:20 - there is modeling, as part of the regulatory,

15:24 - rule making record that the fees that would have been

15:28 - generated are on the order of 170 to $180 million,

15:32 - over a series of over the years of the model period.

15:38 - But we don't we don't know.

15:39 - We don't know what it would have been.

15:41 - Whatever that number is, if you prevail here, what are the limiting factors?

15:46 - I mean, as long as you as long as the agency would promise to abate

15:50 - air pollution, would there be any limiting factor at all?

15:53 - We couldn't just

15:54 - make a rig and charge anything at all.

15:58 - Well, it could not, Your Honor.

16:00 - And, that's one of the, one of the mechanisms of how

16:04 - the regulation is structured is to allow market

16:08 - forces to provide limitations.

16:11 - So the market based limitation on the proceeds that are going to be earned

16:15 - is that there becomes a point where, the cost of an allowance,

16:20 - could rise high enough that it might be more feasible

16:24 - for a regulated entity to simply lower its emissions.

16:29 - And there are limitations in

16:31 - terms of the statutory requirements of the Clean Air Fund, which is where

16:36 - the proceeds of these allowance auctions are to be deposited under the regulation.

16:42 - The Clean Air Fund says that those, that all of the funds that go into the Clean.

16:47 - Air Fund must be used to eliminate, air pollution.

16:51 - And so, that is a limitation on use.

16:56 - And I want to I want to address

16:58 - one point that, sort of underlies the amount of money, which is that

17:04 - the regulation is designed to reduce emissions of CO2

17:08 - by on the order of 100 million to 220 million

17:13 - tons of, of CO2 emissions.

17:18 - It is arithmetic that,

17:20 - any price against hundreds of millions of tons of allowances

17:24 - is going to result in a large number, there's no doubt about that.

17:28 - But the point of the regulation is to, and the directive under the Air Pollution.

17:32 - Control Act is to try to address what is a very significant problem

17:37 - for the Commonwealth and to, make a significant reduction

17:42 - in the volume of CO2 and air pollutant

17:45 - that is, that is being emitted by the regulated entities.

17:49 - And, and just, following on that point,

17:54 - isn't the

17:55 - scale and significance that you're just talking about

17:59 - right now?

18:02 - Doesn't that all

18:04 - argue for this being a policy decision that the legislature has to make?

18:10 - Your honor, the legislature did make the policy decision,

18:14 - the in the Air Pollution Control Act.

18:32 - Apologies, Your Honor.

18:44 - The policy choice that the legislature made

18:47 - and the duty that it imposed on the Environmental Quality Board

18:51 - and the Department of Environmental Protection

18:56 - is to prevent, control, reduce,

18:58 - and abate air pollution.

19:01 - Carbon dioxide is an air pollutant.

19:03 - It falls within the definitions of air pollution within the,

19:09 - authorizing legislation, the Air Pollution Control Act under section three.

19:14 - And there is a finding in the regulatory record

19:17 - about the harms that CO2 emissions,

19:21 - create for the Commonwealth,

19:24 - for its people, for its land and air.

19:27 - And so that policy, choice was made

19:31 - in the legislature also provided in the Air Pollution Control Act.

19:37 - Procedural guidelines to guide the agency

19:40 - in fulfilling that, that, that policy choice.

19:44 - This was not, the

19:46 - the language, appointed to section nine, that creates the, Clean Air Fund.

19:52 - It's it's not, equivocal.

19:55 - It says that funds that go into the air pollution, into the Clean Air Fund

19:59 - are to be used to eliminate air pollution, not just abate or limit or control.

20:05 - The goal is to eliminate air pollution.

20:07 - And so the that was the legislature's choice

20:10 - to, impose that duty on the,

20:14 - executive agencies, in section 5.3.

20:18 - And, it was the legislature's choice to say that use of funds

20:23 - deposited into the clean air Fund is to eliminate air pollution.

20:27 - So would it be fair to say that an alternative view of the policy

20:31 - is that under the creation

20:33 - of the allocation and the money is going into a specific fund,

20:37 - which is to reinvest in the environment, but in essence,

20:41 - from a very elementary perspective, are we not looking at a regulation

20:46 - that, in fact, is the fossil fuel businesses?

20:50 - Are purchasing allowances to put themselves out of business

20:55 - because the moneys that will be collected

20:57 - by the government are really used to shut them down.

21:01 - That as a pedestrian, is that because that if that's

21:03 - a policy decision that we're putting the environment over

21:08 - businesses and jobs, that's for the General Assembly

21:10 - to make a policy decision of that magnitude, not a regulation.

21:15 - A couple points, Your Honor.

21:17 - This appeal isn't about the policy choice

21:22 - of, what is the exact right approach to deal with this issue.

21:27 - This appeal is, most narrowly about whether the Commonwealth Court

21:33 - er and concluding that these allowances are taxes and not fees.

21:37 - And I understand that there's some alternative grounds

21:39 - that are being argued about whether the regulation

21:41 - is authorized by the statute and some other arguments as well.

21:45 - What I can say is that, again, in the context of,

21:48 - this regulation having not gone into effect as of yet,

21:53 - is that the the modeling, that was performed

21:56 - by the agencies in developing this regulation?

21:59 - Is that, not only would you achieve,

22:03 - significant reductions

22:06 - on the order of hundreds of millions of tons of CO2,

22:09 - but that overall it would be beneficial to, the Commonwealth's economy

22:15 - in terms of, jobs, in terms of improvement of health.

22:20 - And so,

22:23 - I wish I could answer your

22:25 - question with anything concrete about what the impacts would be.

22:30 - I can't, because the regulation didn't go into effect.

22:33 - And I can only talk about what was in the rule making record,

22:37 - but it's also I don't think it's the issue before this court

22:40 - today.

22:45 - So it's it's your position that the question before us is

22:48 - whether the Commonwealth Court aird and concluding that this was a tax that.

22:53 - Correct? That's correct, Your Honor.

22:55 - And on that I can I want to stay on the tax versus fee for justice.

23:00 - That really is the issue that we're talking about.

23:03 - Is there a third option?

23:08 - Maybe, Your honor.

23:09 - Okay.

23:10 - So so really we're not presented here with a binary choice.

23:13 - And, Your Honor, I think the, Justice Prior's

23:18 - opinion in the San Juan cellular case was helpful to me.

23:22 - And perhaps it's helpful to this court.

23:24 - It was a first circuit case that was dealing with,

23:27 - this issue of a of a tax versus fee question.

23:32 - And the

23:35 - what I found helpful is this idea of that there's a spectrum.

23:38 - There are sort of classic, no doubt,

23:41 - taxes on one end of the spectrum where it is broadly based across

23:45 - all of the citizens of, of, of the country or of a, of a commonwealth.

23:51 - And on the other hand, there is the very straightforward

23:54 - fee that a business pays in order to operate business.

23:57 - And then that and then there are things that fall in between.

24:00 - Okay.

24:00 - So I'm going to stop you there

24:01 - because I'm wondering if there's an entirely different spectrum.

24:04 - So if I understand how the right and you correct me if I'm wrong,

24:08 - how the regulation works and how Reggie, the program works.

24:14 - States, including Pennsylvania have decided

24:16 - to create this thing called an allowance.

24:19 - Correct?

24:20 - Correct. Here. Okay.

24:22 - Then they've passed a law that creates a demand for it

24:26 - by, by by essentially requiring parties who need or want to emit

24:31 - a certain amount of CO2 above whatever the limit is set by the state.

24:35 - They have to purchase or acquire this thing.

24:39 - Is that correct?

24:40 - They have to acquire an allowance.

24:42 - Okay.

24:42 - So the state has created an item,

24:46 - created demand for an item.

24:48 - And then the second thing the state does is create a market.

24:51 - The third thing they do is create a marketplace for the item an auction.

24:55 - Correct? Correct. Okay.

24:57 - And at that marketplace, the price of the product,

25:00 - the price of the item is going to be determined.

25:02 - It's not going to be determined by the state.

25:04 - It's going to be determined by any state or by itself.

25:06 - It's going to be determined by market forces, correct?

25:09 - Yes, Your Honor.

25:09 - And then the money that flows to the participating states

25:13 - are the proceeds from the acquisition

25:18 - of those state created, state required state demanded items.

25:22 - And those proceeds then are going to flow proportionately to the states

25:25 - by some calculation that I don't know if we know yet.

25:28 - Correct.

25:29 - Well, it flows in proportion to the number of allowances placed into the auction,

25:33 - and I assume that whoever's running Reggie will keep a

25:37 - an administrative fee of some sort.

25:39 - There's a fee, Your Honor. It's part of the 6% that the parties talk.

25:42 - Where in that transaction is the fee paid to the Commonwealth?

25:46 - The fee is. So

25:49 - it's a very straightforward question.

25:50 - Where is that?

25:50 - Where is where is the regular or is it the purchase of the allocation.

25:54 - That's the fee the purchase of the allowance I'm sorry.

25:58 - Purchase of the allowance. That's the fee. Correct.

26:00 - Okay.

26:01 - Sounds a lot like interstate commerce to me.

26:03 - Doesn't sound like I mean, you're creating a product,

26:06 - you're creating demand for it. You're selling it, you're creating them.

26:09 - You're not even selling it on Amazon.

26:10 - It's like the environmental Bitcoin.

26:12 - You're selling it. It's a commodity.

26:14 - It's a and it's freely tradable.

26:16 - It's as soon as they acquire it they can trade it and sell it

26:19 - on another market that sounds like the state is in that,

26:23 - that the regulation is authorizing DEP to engage in interstate commerce.

26:30 - How where am I missing that?

26:32 - That's why are we talking about fees versus taxes.

26:35 - This is like selling liquor over interstate lines.

26:39 - I appreciate the question. You're

26:41 - the disconnect is that, everything you talked about is

26:46 - the mechanism is just a mechanism of the exercise

26:51 - of the police power by the regulatory agencies.

26:57 - So what you just talked about,

26:59 - creating this allowance.

27:02 - See, I interrupt you for a minute.

27:06 - Appkit talks about licenses. Yep.

27:08 - Specifically expressly Appkit doesn't talk about another product.

27:14 - They talk about licenses is a product that can be

27:16 - that are that are purchased, paid.

27:20 - They are silent on this idea of the DEP

27:23 - can create this other product called an allowance.

27:27 - Your honor, I my response

27:30 - is that the allowances are not different

27:33 - in kind from a license to pollute

27:37 - at everything that you just all the steps that you walk through in terms

27:40 - of the mechanism of how the regulation goes about applying the police power here,

27:46 - is is simply a matter of,

27:49 - imposing limitations

27:52 - on the regulated entities, on the extent of their activity.

27:56 - That's within the type of regulation that is allowed under the air pollution.

28:01 - That's that's that's somewhat convenient, though,

28:03 - because this is a model that we have never seen in Pennsylvania before.

28:08 - And, and and it's it's a significant it's not a, it's not a license.

28:12 - License can't be sold.

28:14 - But there's no secondary market for a license for an MDS program.

28:18 - There's no you know, there's there's there's no secondary permit market.

28:21 - This is you're creating a tradable you're creating commerce.

28:26 - And and that seems like it's something again to

28:30 - I think just to Socrates point, that is that it gets into the issue

28:34 - of whether it's online,

28:35 - whether there's some sort of unconstitutional delegation

28:37 - of legislative authority if you're actually correct.

28:40 - But it complicates the fee versus tax dispute

28:43 - because an all of those fee versus tax disputes, there was a one on one, it was

28:47 - you want to do this, you have to pay us this fee.

28:50 - This structure

28:52 - I think arguably takes it out of the whole fee versus tax paradigm

28:56 - and simply asks us the basic question, what authority does DEP

29:01 - have to create a product that the General Assembly

29:03 - has not authorized them to create,

29:05 - to not set a price, but to create a marketplace created demand

29:09 - and then reap the profits from the sales, whatever they may be, along

29:13 - with it's brothers and sister states who agree to enter into this conglomerate.

29:19 - Your honor,

29:19 - there's a couple different issues that I want to address here.

29:22 - The first is what the Air Pollution Control Act authorizes the agencies to do.

29:28 - And the second is, this issue of,

29:31 - there's an implicit issue in Your Honor's questions about, the effect and,

29:36 - and what it means, the fact that there are,

29:40 - entities outside of Pennsylvania that are participating.

29:43 - Those are those are two separate issues.

29:45 - Well, I think my question is really is, is is targeted toward

29:49 - this idea that we are here because the issue that the commonwealth

29:52 - of all the issues that the Commonwealth Court

29:54 - could have decided, they decided the tax versus fee issue.

29:58 - And the question before us is and you started it this way,

30:02 - is it a tax or is it a fee?

30:05 - We don't have a

30:06 - standard factual paradigm to decide that question.

30:10 - We have a commerce paradigm.

30:12 - And and and that's what I'm struggling with.

30:15 - I understand there's a lot built into my question and I'll shut up.

30:19 - But but

30:20 - do you agree that the department that lacks the authority

30:24 - to engage in interstate commerce?

30:29 - I, I think I agree with that, Your Honor, although I haven't

30:34 - thought about it in that way, because the Reggie regulation

30:39 - does fall within the classic rubric of a regulatory fee.

30:45 - And I'm going to try to try to walk through why.

30:50 - The subject of regulation

30:52 - is the emission of CO2.

30:55 - I don't think there's any dispute that CO2 is

30:57 - is a proper, is properly regulated as an air pollutant

31:02 - under the Air Pollution.

31:03 - Control Act that is that's an issue that hasn't really been argued here.

31:07 - I'm going to put that to one side and put that in the pile is as is not disputed.

31:14 - The, Reggie regulations action is within

31:19 - the methods of regulation that are set forth in the air pollution control Act.

31:23 - There are there's a list within section 5.3 of the types of, of the methods

31:29 - of regulation that the board and the department can engage in.

31:33 - There are at least three that are applicable to the Reggie regulation.

31:37 - One is to, to impose limitations on air emissions.

31:44 - Another is regulation of processes, in this case burning of fossil fuel.

31:49 - And the third is, regulating combustion of certain fuels,

31:53 - again, burning of fossil fuels.

31:58 - The concern that Your Honor raised

32:00 - is, again, a mechanism concern about

32:04 - how is does this regulation go about limiting emissions

32:09 - and regulating, regulating combustion of certain fuels?

32:15 - What the what the record is,

32:18 - is that, this approach of issuing allowances,

32:22 - and putting it into a regional auction, the analysis that was performed

32:28 - for this regulation was that that was an efficient way to go about it.

32:33 - Again, not here to argue whether that's, best or right.

32:38 - But, that that was the analysis that was done.

32:42 - The idea of, a cap and trade

32:45 - approach to emissions allowances is not new.

32:49 - The Commonwealth of Pennsylvania started engaging in a cap and trade

32:55 - approach to air emissions in the, in the acid rain program,

33:01 - which was, started back in the late 80s and early 90s.

33:06 - That same approach has been utilized with regard to,

33:10 - smog emissions, oxides of nitrogen.

33:13 - That approach is one that has been used and implemented in this Commonwealth

33:19 - before we ever get to Reggie. The.

33:26 - So that mechanism, that approach is, is not new.

33:30 - It's been authorized. It's been,

33:33 - it hasn't been, reversed in terms of I'm, I'm not I'm unfamiliar with that.

33:37 - But you're saying that this exact same structure where the where

33:41 - the regulation creates a products for acid rain

33:45 - and, prices it requires the purchase of the product,

33:48 - creates an interstate market, and reaps the proceeds from a, from a mass auction.

33:52 - So the difference there is, is tradable and it's a tradable product.

33:56 - Tradable. Yes. Creation. Yes.

33:59 - In that there were allowances that were issued and and yes, tradable.

34:03 - The difference here is that, under Reggie,

34:07 - the mechanism is that the allowances will be, will be sold

34:12 - and that the proceeds will be, placed into the Clean.

34:16 - Air Fund, that that's the difference between the two programs.

34:19 - But in terms of how does it work for acid rain?

34:21 - They are they were assigned, and they were tradable

34:24 - and again, a declining, budget over time.

34:28 - But was there a purchase of them?

34:30 - They were assigned, Your Honor.

34:31 - They were allocated. No, assigned.

34:33 - They were there was no trading of money.

34:36 - There was no payment of money for it.

34:37 - They were not

34:38 - they were not, auctioned in the way that their energy allowances are and

34:41 - and cancel the programs you're referring to.

34:43 - Were they done without the authorization

34:46 - of the General Assembly, just unilaterally by Debbie?

34:49 - It was, your Honor.

34:50 - It was not passed by the General Assembly.

34:53 - Okay, okay.

34:53 - Yeah. It, yeah,

34:57 - the the the issue of,

35:02 - the cooperation among the states

35:04 - and, this idea of interstate commerce,

35:08 - we need to be very clear and precise about

35:12 - what the exercise of power by the agency is.

35:15 - The exercise of power is to say to Pennsylvania based

35:20 - regulated energy generators, you must,

35:24 - buy allowances.

35:26 - You must buy a license to that correlates

35:30 - to your the extent of your emissions of, say, licenses.

35:33 - Though

35:34 - we wouldn't be here if this was simply you passing a licensing regime that required

35:39 - a license to emit above a certain amount in Pennsylvania,

35:43 - we wouldn't be here if that was that was the only issue.

35:47 - You're adding new words to your argument.

35:50 - Now you're saying it's a license.

35:52 - That's not what the position of the AP has been.

35:55 - The regulation doesn't use the word license.

35:58 - It doesn't use the word fee.

35:59 - It it it doesn't even use the word tax.

36:03 - So it doesn't use any of those.

36:05 - What it uses is auction price, sale bid.

36:09 - Nothing about a license, Your Honor. It,

36:13 - I will withdraw the reference to license.

36:15 - I was trying to call back to my prior statement that it is a license to pollute.

36:19 - It does, in fact, say that it's.

36:20 - It is a fee.

36:22 - It says that it is a regulatory fee.

36:24 - And it says that the that these allowances and the proceeds from them

36:28 - are a regulatory fee under section 5.3 of the air pollution Control Act,

36:34 - that is that in the body of the regulation

36:37 - or is it in like an explanatory comment associated with it?

36:41 - Both, Your Honor, it's part of the, regulatory analysis form

36:46 - that comes at the front that provides the background and statements and summaries.

36:50 - And it's also in the longer form as well.

36:55 - That again,

36:56 - the exercise of the police power is solely in Pennsylvania.

37:00 - It is enforceable only against Pennsylvania

37:04 - based generators in telling them that they must acquire allowances

37:08 - that correspond to their,

37:11 - to their level of emissions.

37:15 - It, issues

37:16 - it establishes a CO2 budget, that declines over time,

37:21 - and it issues allowances that correspond to the CO2 budget.

37:25 - And then in terms of the, in terms of the proceeds from the auctions

37:29 - of the allowances, those proceeds, Pennsylvania only receives its,

37:34 - share of the overall proceeds based on Pennsylvania's

37:38 - issued allowances that declining over time point you just mentioned.

37:42 - Yeah, sure.

37:43 - Isn't that a policy decision

37:45 - to shut down the fossil fuel generators or industry?

37:50 - It it's it's not, Your Honor.

37:53 - And it's, first of all, the under the modeled period

37:57 - that the regulation is not intended to to go to zero in terms of,

38:03 - CO2 emissions by these regulated entities.

38:06 - So that's, that's one point.

38:08 - But but the idea of the, of the regulatory

38:12 - regime is, is to allow,

38:16 - the regulated entities to, manage their business

38:20 - in the most efficient way, as they, as they intend.

38:25 - So, you could, include

38:28 - technology to reduce your emissions.

38:31 - You can buy allowances, you can,

38:35 - reduce your, run time or your fuel mix.

38:38 - There are many options that could be that the,

38:41 - regulation is agnostic about what approach is taken.

38:45 - The only thing the regulation says is that for x tonnes of CO2,

38:50 - you must submit to the department ex allowance

38:55 - for those tonnes of the the number of allowances decline.

38:59 - Right. Does the tonnage have to decline over time?

39:03 - Yes. One allowance is one ton.

39:06 - And so, there is a decline over the model period.

39:11 - There's about a 20 tonne decline in CO2

39:15 - and a 20 tonne decline in allowances that are issued over the modeled period.

39:21 - What the regulation says is that in addition to those declines

39:25 - due strictly to the number of allowances that are issued, that

39:29 - because of the investment of the proceeds,

39:33 - the regulation is modeled to achieve,

39:37 - somewhere around 100 million

39:39 - to 220 million tonnes of reduction.

39:42 - So one part of the reduction is due to the allowances

39:47 - and just the number of allowances that are issued and available, and the remainder

39:51 - is based on, the investments that are made by the regulator.

39:55 - And how how is that

39:57 - how is that contained within

39:59 - delegated authority from the General Assembly?

40:04 - So, the standard,

40:06 - to a couple points, the standard for in terms of the delegated

40:11 - authority is simply is the policy choice made.

40:14 - And here the policy choices made in the Air Pollution.

40:17 - Control Act by the statute saying that, the intent of the legislature

40:23 - is to reduce and abate harmful air pollution, to eliminate air pollution.

40:29 - That's the policy choice.

40:30 - The guidelines, the procedural protections to make sure that the agencies carry out

40:35 - that policy choice is in,

40:38 - the Commonwealth Documents Act, the Commonwealth Attorneys Act,

40:42 - Commonwealth Documents Law, the Commonwealth Attorneys Act,

40:45 - the Regulatory Review Act,

40:48 - so that that's the issue that this court need,

40:52 - perhaps need to address in terms of the delegation

40:54 - counsel, in terms of piggyback off of Justice Black's point,

40:57 - if you're right in the the policy choices, the General Assembly

41:01 - passing a law that simply says DEP shall abate air pollution.

41:05 - So then the after could have been much shorter.

41:08 - In fact, every piece of legislation could be shorter.

41:11 - Our our our, principle of unconstitutional delegation

41:16 - of legislative authority requires

41:19 - the General Assembly to do more than just declare a purpose

41:23 - and let this is not the federal government where that can happen.

41:26 - And most of your actions happen in regulation.

41:29 - So you have to you have your are you really taking the position

41:33 - that all the General Assembly has to say is DEP go forth and abate air pollution,

41:38 - and as long as they pass a regulation that complies

41:41 - with the Commonwealth documents law and doesn't fall, doesn't fall afield

41:45 - of the Commonwealth Attorneys Act, which I'm not sure what that has to do with it

41:48 - other than the attorney general's approval, the regulation, what

41:53 - our statutes in Pennsylvania could be much shorter.

41:56 - They could be, but they don't have to be, your honor.

41:59 - Your honor, I think that, this court

42:01 - addressed this delegation issue

42:05 - somewhat recently in the in the most recent Marcellus Shale case,

42:09 - the 2023 Marcellus Shale case in the court

42:12 - in that case reaffirmed

42:15 - what the standard is for this delegation issue,

42:17 - which is and pointed to the Eagle environmental two case

42:21 - and to to Pratt's and to Taso and and all of the cases

42:24 - that have come down from this court about what the delegation

42:27 - doctrine is in Pennsylvania and it and it is

42:31 - it is nothing more and nothing less than when the legislature provides

42:35 - a clear statement of policy and provides guidelines

42:40 - for the agency to follow,

42:43 - that satisfies the, the that the non delegation concern

42:47 - goes even further because there's

42:50 - your alleging a delegation to your agency

42:54 - and then then it becomes more highly attenuated

42:56 - because then there's a marketplace out there

43:00 - of what you don't claim control and you couldn't claim control.

43:04 - So it's a it's a delegation that goes beyond anything in proxy, even.

43:09 - Your honor,

43:11 - I think the case law is does not say that,

43:15 - the goal or the policy choice needs to be accomplished in a certain way.

43:21 - There's once the authority has been properly delegated,

43:26 - which is again stating what the policy is and providing,

43:31 - adequate, protections to ensure

43:33 - that the agency carries out the, policy goal,

43:38 - that that's what's happened here.

43:40 - That's what happened with the Reggie regulation.

43:43 - And that's what the law says to avoid a delegation issue.

43:48 - Right.

43:49 - Your honor, might have also might have been touching on, on on

43:52 - whether the, Air Pollution Control Act authorizes this approach.

43:59 - And there again, we come back to with the subject matter of the regulation,

44:03 - is the method of regulation and the fact that the air pollution

44:07 - control Act allows for the creation and imposition of fees

44:12 - in support of the Air Pollution Control Act.

44:15 - I'm sorry, in support of the air pollution control program.

44:19 - That's what these, What that's what the proceeds from these auction allowances do.

44:24 - Be not so yours is a is a wildly expensive

44:28 - kind of reading of and of the general intention.

44:31 - I'm just thinking, can you think of any circumstance by which

44:34 - the EPA could enact a regulation or a rule that would be deemed

44:39 - kind of outside the parameters of what the enabling statute allows?

44:43 - In other words, could say, you know what, CO2

44:46 - you got a lot of cars out there that generate CO2.

44:49 - Let's, let's let's eliminate all cars.

44:51 - How about cows generate CO2?

44:53 - Let's, let's not have cow like, you know, meat farming anymore.

44:55 - I mean, I'm just trying. I'm struggling.

44:58 - Where's the limit?

44:59 - Because in this particular issue, and I think we're kind of nibbling

45:01 - around the edges, theoretically under your reading of the statute,

45:06 - you could basically charge unlimited amounts and do it

45:10 - literally untold, take untold measures to generate income, fees, license fees,

45:15 - whatever you kind of want to call them, and essentially

45:18 - put any kind of business that generates CO2 emissions out of business,

45:23 - a couple, would that be allowable?

45:25 - I don't think so, Your Honor, in a couple of responses.

45:28 - First, and if you could, where do we draw the line?

45:32 - Sure.

45:33 - We draw the line, with the language of the Air Pollution Control Act.

45:38 - The subject matters of,

45:41 - what is air pollution under section three, the methods of regulation

45:46 - under section five, a and then the requirement

45:52 - that the fees, any fees that are, imposed

45:56 - must be used, to support the air pollution control program.

46:01 - And so in the case of, in the case of the Reggie regulation,

46:05 - does that mean you can outlaw automobiles, gas powered automobiles?

46:08 - I don't think so, Your Honor or not.

46:10 - But the line drawing problem exists.

46:13 - So if I mean, if if you're saying you're delegated

46:17 - the authority to abate pollution

46:20 - and this is how you're doing it, in principle, though, there's

46:24 - there's no difference to you, then promulgating regulation that shuts down

46:28 - every kind of CO2 emission except perhaps human respiration.

46:32 - What's the what's the what's the.

46:35 - Don't give me any ideas. Just work. Okay?

46:37 - I don't see the principle limitation,

46:39 - the limited, the fundamental limitation is that the General Assembly

46:45 - can always amend the air Pollution Control Act,

46:48 - can impose a limitation on towns without an air fund.

46:51 - That is not a good answer.

46:52 - I'm just going to state that the idea that you,

46:56 - if you violate or go beyond your authority,

47:00 - that the general said

47:01 - that the only solution is for the General Assembly to amend the statute to again

47:04 - to to to say you can't violate what they previously wrote.

47:07 - That's not a good answer.

47:10 - You're on the the

47:12 - the line drawing that the that the court is is wrestling with here

47:17 - today is about hypotheticals that are not this regulation.

47:22 - Well, but we deal with hypotheticals. That's why you're here.

47:25 - This court deals with the ramifications of our rulings much beyond Reggie

47:29 - and to I think justice McCaffrey raised a really good example.

47:33 - What is you know, what if methane emissions

47:36 - are determined to be hazardous or CO2 emissions from a farm?

47:41 - Can you can you

47:42 - basically require farmers in Pennsylvania

47:46 - to purchase allowances for cattle to emit whatever cattle emit,

47:51 - and then trade those on the open market in the hopes of reducing,

47:56 - the amount of cattle people can have on farms

47:58 - because of the noxious fumes that are emitted from farms.

48:03 - The, the statutory grant of authority under the Air Pollution Control Act,

48:08 - that is the basis of the Reggie regulation wouldn't apply in that.

48:11 - I wouldn't apply because, there is no, fossil fuel being combusted.

48:17 - And, there is no, process for generating output.

48:21 - Doesn't occur, doesn't act, it doesn't apply

48:25 - your authority under RPA to abate air pollution

48:27 - wouldn't apply to any any source of air pollution.

48:35 - I know the Reggie regulation wouldn't apply.

48:36 - I'm asking you whether Apple would apply,

48:40 - Your Honor.

48:40 - The section five, a one of the Air Pollution Control Act

48:45 - says that the rules and regulations that the board and may promulgate

48:52 - and the board may enforce, may establish maximum allowable emissions rates of air

48:58 - contaminants from sources may, prohibit or regulate the combustion of certain

49:04 - fuels, may prohibit or regulate open burning, prohibit

49:08 - or regulate any process or source or class of processes or sources.

49:13 - Require the installation of specialized,

49:16 - of specified control devices or equipment,

49:20 - or designate the control of or designate the control efficiency of air pollution

49:25 - control devices or equipment required in specific processes or sources

49:30 - or classes of processes or sources.

49:33 - Those are the,

49:36 - mechanisms of regulation that the Air Pollution Control Act allows,

49:40 - and those are the mechanisms of regulation that are being

49:44 - used in developing and promulgating the regimen.

49:48 - And they can be applied to any source, any source of air pollution.

49:53 - Like an automobile owned by a family.

49:55 - You could create, allowable source that has to be auctioned off.

49:59 - And every Pennsylvania family that operated a gas driven

50:03 - automobile after purchase to,

50:06 - compensate for the amount of CO2 that came out of.

50:09 - I don't know that to be true, Your Honor.

50:14 - Because, the,

50:16 - you would have to examine whether, in that

50:20 - case, the, individual families vehicle

50:24 - or anything would qualify as a source within the, the, the,

50:29 - requirements of the air pollution control, to ensure justice

50:34 - to our request or question regarding method,

50:38 - that's when would you regulate cows or no,

50:41 - I don't I don't believe I don't know that whether you could or not, Your Honor.

50:44 - Why not? Under the enabling Act.

50:46 - That said, the reduction, prevention of any pollution of the air

50:50 - by smoke does fume gas or odors does not include it?

50:55 - It could,

50:56 - Your Honor, but you still have to file with.

50:59 - How do you define methane gas or.

51:01 - Methane is a gas, Your Honor.

51:03 - And the enabling act specifically says gas.

51:06 - So, in essence, you could methane.

51:11 - Methane is regulated, but the, that the question is

51:15 - whether the methods of regulation under section five A1 would apply.

51:20 - And that's a question I'm not sure what the answer is, Your Honor.

51:24 - And that's the section that you just read to us in for.

51:27 - Correct. Your honor,

51:29 - let me ask you a question.

51:31 - The, the, the opinion that we're looking at

51:34 - from the Commonwealth Court dealt with one issue.

51:37 - It did your Honor. Okay.

51:39 - The arguments that we're engaged in here, I,

51:44 - I'm assuming they were raised at some point in the Commonwealth Court.

51:46 - They were, Your Honor, and the Commonwealth Court just didn't address them

51:50 - in the earlier stages of this case.

51:52 - At the preliminary injunction stage, the Commonwealth Court

51:55 - found that they did not raise even a substantial legal question

51:58 - to support an injunction, and that wasn't appealed.

52:03 - The, the

52:05 - the agency's appealed the grant of the injunction.

52:09 - However, that grant of the injunction

52:11 - was also based solely on this tax versus fee issue.

52:15 - Okay.

52:15 - You see where I'm going with this question?

52:17 - I mean, I, I, I find the discussion, interesting,

52:22 - but I just don't see how it impacts on the issue that we have before us.

52:28 - Well, I mean, I did some of the questioning.

52:30 - My issue is I'm not sure it's a tax or a fee.

52:32 - I think it might be something different, which was the basis of my question.

52:35 - But that's a different that's a whole different issue.

52:37 - Well, so if they want a policy allows in terms of,

52:42 - section

52:43 - five a, I mean, maybe these questions have to be answered.

52:47 - Maybe it has to go back to the Commonwealth Court.

52:49 - I didn't study, the intricacies of the Commonwealth

52:53 - court's, prior, opinions in this case,

52:58 - and if they decided these issues

53:01 - and they weren't appealed, then that's one answer to this.

53:05 - The other answer is maybe it has to go back

53:07 - to the Commonwealth Court to look at these, other issues

53:10 - that we're talking about. But,

53:14 - is it your position is

53:16 - this is not a tax in it's not a tax,

53:20 - and it is a regulatory fee, your honor.

53:25 - Let me it's

53:26 - but I guess the point is, though, or a point is, even if it's not a tax,

53:32 - it's still might very well be an unlawful fee or whatever you want to call.

53:36 - Correct.

53:38 - I don't

53:39 - are we are we are you in response to Justice Donnelly

53:43 - or are you telling the court that

53:46 - that we are chained to this binary of tax?

53:49 - We we can't we can't go anywhere else here

53:52 - other than answer the question, is it a tax or A or B?

53:55 - And we're done that that that is the issue before the court.

54:00 - And it's the Commonwealth court's finding

54:02 - that the allowances are in fact a tax.

54:06 - That's the basis for this case

54:09 - being before this court.

54:12 - The these other issues were were raised below,

54:16 - the department and the board prevailed on, on all of them.

54:20 - And we are here on, on the one issue

54:24 - on which the board and the department did not prevail,

54:28 - the considerations.

54:30 - Yeah. I want to emphasize that.

54:32 - And this is not these are not Pennsylvania cases.

54:35 - I grant that.

54:36 - But this issue of allowances

54:40 - and fees being imposed for the emissions of carbons,

54:45 - this is not the first, case that that's been raised.

54:48 - And we cited these cases in our brief, but there's a case in, California

54:53 - that address this issue, a case in Maryland

54:55 - that address this issue and the Fourth Circuit address this issue.

54:59 - And in each of those cases, those courts found

55:02 - that, imposing fees based on,

55:06 - emissions of CO2 were not taxes, they were regulatory fees.

55:12 - And that's consistent with this court's precedent in a number of contexts,

55:17 - in a number of areas where, it's the it is the purpose of the charge.

55:23 - It is whether the proceeds are going into a segregated, defined purpose fund.

55:30 - It is

55:31 - the, do the regulated entities

55:34 - receive a distinct benefit as a result of having to pay this fee?

55:38 - Are they mandatory or are they voluntary?

55:41 - And is there a, is there a correlation between the amount of fee

55:46 - and the extent of the regulatory activity or the harm that's caused those factors

55:51 - appear in, in lots of cases going back to,

55:55 - American Baseball Club, about,

55:59 - about fees imposed for Security Council,

56:02 - all those cases deal with the with the binary choice.

56:05 - All those cases are determined to try to determine

56:08 - whether something is a tax or a fee.

56:11 - So the test is meant to differentiate

56:13 - between what others and what otherwise will be a tax.

56:17 - So again, and I realize that the Commonwealth Court said this.

56:21 - And maybe, maybe what we say is the Commonwealth Court

56:23 - was wrong in saying it was a tax. But don't bless your idea.

56:25 - That was a fee.

56:27 - Because again, I, I just I've never seen anything

56:31 - like this before, in terms of Pennsylvania regulation.

56:35 - And I think about what other agencies

56:36 - could do with the sort of general a power to regulate what they regulate.

56:40 - But but I appreciate the case law across the Commonwealth,

56:44 - across the state, and that we have here

56:46 - about the about differentiating between whether something is a tax or a fee.

56:50 - And I'm, I'm, I'm repeating myself.

56:53 - I'm not sure it's either.

57:03 - A couple things, Your Honor.

57:05 - First,

57:12 - This regulation could have simply said,

57:16 - for every tonne of CO2,

57:18 - admit you must pay X.

57:22 - That would be a permit.

57:23 - Okay.

57:26 - This regulations approach

57:27 - is to try to provide greater flexibility to the regulated entities,

57:33 - to be able to judge what their needs are and what the

57:38 - what an efficient way of approaching their needs are.

57:42 - So, fundamentally,

57:46 - there's still a, an allowance

57:49 - being provided by the agency to the regulated entities and money

57:53 - being paid in order to, to for that, for that allowance for that.

57:59 - Right. The

58:03 - this case was litigated and the challengers to the regulation

58:08 - litigated this case arguing that this is a tax, not a regulatory fee.

58:14 - That's the challenge.

58:15 - That's that's how this case was litigated.

58:17 - It was how it was litigated in the Commonwealth Court on the

58:20 - on the preliminary injunction and on, motions for summer relief.

58:24 - And it's how this appeal has been, has been litigated.

58:30 - That that that was the issue that was raised.

58:32 - And, that's the issue that the Commonwealth Court

58:37 - shared in applying Pennsylvania precedent by saying this is a tax and there's a

58:42 - there's a categorical error that was made below that, I think is not supported

58:48 - by this court's precedent, which is to simply say that

58:52 - administrative costs are the only costs that count.

58:55 - You'll see in the briefs and in the record that there's this, this,

58:58 - reference to 6% of the proceeds being used for the regulation.

59:02 - The 6% of the proceeds are the administrative costs,

59:06 - the fee to the, to the service

59:09 - provider that that runs the auctions,

59:13 - that just simply ignores

59:14 - and does away with the part of the regulation

59:17 - that that, accomplishes, or is designed to accomplish and modeled

59:23 - to accomplish huge reductions in CO2, which is the invest

59:27 - piece of the cap and invest.

59:30 - That's

59:30 - where the Commonwealth court's error was, was to,

59:33 - and that's the that's an error that you see in the challengers, in my colleagues

59:38 - briefs is to focus solely on this idea of administrative costs

59:42 - being the only relevant costs

59:43 - when comparing the proceeds to the regulation that's occurring.

59:47 - And, and this court's precedent and other courts are not so limited.

59:52 - You look at the entire scope of the regulation. Mr.

59:55 - Hazlett, I think we understand the issues.

59:57 - Thank you very much.

59:59 - 806 May I ask him one question?

01:00 - 03.475 Because you're not going to get rebuttal.

01:00 - 05.744 And I know that,

01:00 - 11.016 your co-counsel is going to be arguing the application of the Environmental.

01:00 - 15.487 Rights Amendment, but I'm going to ask you whether or not we can

01:00 - 20.559 look at the Environmental Rights Amendment in deciding this issue

01:00 - 26.498 of whether it is a tax or a fee, when the, when your agency

01:00 - 32.228 did not rely on article one, section 27, in promulgating the regulation,

01:00 - 36.008 Your Honor, there's there's two points.

01:00 - 37.009 The answer is yes.

01:00 - 40.136 The the court, can and should,

01:00 - 43.782 consider the Environmental Rights Amendment.

01:00 - 49.221 We all have to, the, all of the agencies, all of the branches must consider

01:00 - 52.815 and act consistent with the environmental rights Amendment.

01:00 - 56.028 You're also is, your honor, is also correct

01:00 - 00.599 that it was not the authorizing,

01:01 - 04.794 it was not the basis of the authorization that the agency used for this.

01:01 - 09.141 The the basis for the authorization was the statutory

01:01 - 12.602 authority granted by the General Assembly and the Air Pollution Control Act.

01:01 - 17.816 And so, you don't, to sustain the,

01:01 - 22.412 this regulation in this case, you do not need

01:01 - 26.125 you do not need to go beyond the authority granted by this statute.

01:01 - 28.193 But but obviously, the, the,

01:01 - 31.487 the constitutional interests are part of the court's consideration.

01:01 - 35.200 Was that just sort of, in the flavor then?

01:01 - 39.505 I mean, that you never mentioned that you never mentioned the Environmental.

01:01 - 44.400 Rights Amendment in your rag, a much less the legislature never mentioned it.

01:01 - 47.613 So is that just like a sort of another

01:01 - 50.983 layer of gut check or analysis we do on the back end?

01:01 - 55.545 Say this rag sort of is friendly to the environmental rights amendments

01:01 - 57.956 would give it a leg up. I don't understand the argument.

01:01 - 01.727 The regulation is consistent with the Environmental Rights Amendment.

01:02 - 04.963 And I think that the, I think this court's precedent talks

01:02 - 08.834 about, both regulations and legislation needing to be consistent

01:02 - 11.861 with the rights granted under the Environmental Rights Amendment.

01:02 - 17.409 Your honor is correct that the in terms of the regulatory development

01:02 - 20.436 of the regulation and the promulgation of the regulation,

01:02 - 23.816 it was based on the authority granted under

01:02 - 27.076 the under the General Assembly's Air Pollution Control Act.

01:02 - 30.813 Well, every, every enactment must be consistent with the Constitution.

01:02 - 35.160 I mean, what does that get you?

01:02 - 36.528 Does that get us to the point

01:02 - 39.555 where we can consider it, even though you didn't rely on it?

01:02 - 42.892 I mean, frankly, I've raised this issue before

01:02 - 47.539 as a trustee, under article one, section 27.

01:02 - 50.976 It's somewhat appalling that this wasn't raised

01:02 - 54.003 in support of, what you were doing here.

01:02 - 58.641 But that being the case, does that tie our hands,

01:02 - 03.322 in considering it in the context of whether or not

01:03 - 06.949 this is a tax or a fee, it does not tie the court's hands.

01:03 - 08.594 Okay. Thank you very much.

01:03 - 11.621 Let's hear from miss O'Neill.

01:03 - 32.351 Thank you very much.

01:03 - 33.886 Good morning, Chief Justice.

01:03 - 36.913 Madam Chief Justice had justices of the Supreme Court.

01:03 - 38.590 My name is Jessica O'Neill.

01:03 - 40.626 I'm here with my colleague, Emma Bast.

01:03 - 43.028 We are from citizens for Pennsylvania's Future,

01:03 - 47.766 and we represent the Intervenors in the 110 and 111 cases

01:03 - 52.004 before you intervenors are citizens for Pennsylvania's Future Clean Air Council,

01:03 - 56.399 Sierra Club, and in the 111 case Environmental Defense Fund.

01:03 - 00.546 Your honor, there are two points that I want to focus on today.

01:04 - 04.073 In addition to responding to whatever questions the court may have.

01:04 - 08.520 And the first is that the application of the Environmental Rights Amendment,

01:04 - 13.449 article one, section 27 of Pennsylvania's Constitution addresses appellate

01:04 - 17.220 constitutional concerns with the regulation and harmonize

01:04 - 20.265 the constitutional provisions at issue here.

01:04 - 23.235 And the second is that once we view the regulation

01:04 - 26.238 through that section 27 framework,

01:04 - 29.498 it is plain that the charge is not a tax.

01:04 - 33.636 Your honor, the people have a right to clean air.

01:04 - 37.749 The words our Constitution uses were overwhelmingly

01:04 - 40.977 chosen by the people, ratified by the General Assembly.

01:04 - 46.215 Pennsylvania's Air Pollution Control Act empowers and authorizes the department

01:04 - 49.418 to ensure that this right to clean air is reality.

01:04 - 53.198 The Energy Regulation is part of the department's program

01:04 - 56.692 to secure the people's constitutional rights to them.

01:04 - 01.764 By putting the plain text of section 27 at the forefront of its analysis.

01:05 - 05.334 This court will faithfully support and obey the Commonwealth's Constitution,

01:05 - 09.715 and should find that the regulation is a lawful and constitutional rule

01:05 - 12.842 that carries out the purpose of the law and the will of the people.

01:05 - 15.921 Now, as a preliminary

01:05 - 18.924 matter, the Environmental Rights Amendment applies to this case.

01:05 - 22.051 Because Air is a public trust resource,

01:05 - 24.863 Air is the first enumerated resource

01:05 - 27.890 in the amendment, which is the instrument of the trust

01:05 - 31.603 and then the trust created in the second sentence of the amendment

01:05 - 34.940 includes the resource listed in the first sentence, and this court

01:05 - 39.302 said this in the PDF to case in the line of PDF cases.

01:05 - 44.016 But how the trustees duty is to conserve and maintain our public natural resources

01:05 - 47.476 in furtherance of the people's specifically enumerated rights.

01:05 - 50.489 If it doesn't apply to air to the resources listed

01:05 - 53.516 in the First Amendment, then the right is meaningless.

01:05 - 57.095 Second, and importantly, public trust resources

01:05 - 00.923 are not limited to resources that the state owns.

01:06 - 04.236 Again, looking to the language of the amendment to the instrument

01:06 - 08.073 of the trust itself, which states that Pennsylvania's public

01:06 - 13.879 natural resources are the common property of the people and the traditional

01:06 - 17.683 and historic meaning of the term common property includes public trust aspects.

01:06 - 20.710 It doesn't mean just fee simple property.

01:06 - 25.781 Yes, following your argument, would you then agree as to question

01:06 - 30.619 proffered by justice said that based upon the IRA,

01:06 - 33.832 you can regulate cows

01:06 - 37.026 on the farm with their distribution of methane.

01:06 - 38.937 I would not agree with that.

01:06 - 42.007 Justice Dakota, because we still have to look to the specific

01:06 - 45.101 statutory authorization that the General Assembly

01:06 - 48.971 gave to the department in the Air Pollution Control Act.

01:06 - 52.284 What the ERA says is that Air is a public trust resource,

01:06 - 55.811 and the department and other trustees have to act to protect it.

01:06 - 59.648 And then the General Assembly tells the agency what authority it has

01:06 - 04.220 to accomplish that through the statutory authorization that it gives here.

01:07 - 07.799 What the IRA says is that we have to look at that statutory authorization

01:07 - 12.495 with the trust purposes in mind, with these resources in mind.

01:07 - 14.740 But we still have to look at the statutory

01:07 - 17.767 authorization to see what the agency can do.

01:07 - 20.779 Counsel does not come back to my original question.

01:07 - 24.407 We keep relying upon napkin napkins, got a specific reservation of rights.

01:07 - 26.852 It basically says you can do all these things.

01:07 - 29.879 And of course, nobody's ever going to argue that clean air is not important.

01:07 - 30.757 Nobody up here,

01:07 - 34.659 I don't think he's ever going to tell you it's not a benevolent statute.

01:07 - 37.796 It's not a statute that, was probably entered

01:07 - 41.290 into lightly in conjunction with article one, section 27.

01:07 - 45.061 But my point is that the reservation of rights specifically says

01:07 - 46.805 the Department of Environmental Protection

01:07 - 49.174 and all these other agencies have the right to do these things

01:07 - 52.177 for the protection of our natural resources, including er,

01:07 - 56.305 subject to the General Assembly's authorization and approval.

01:07 - 59.551 We don't have that here, which is what my first question was.

01:07 - 03.045 We've got, by my calculation, I think, 12 states that entered into Reggie,

01:08 - 07.183 the only one that did so without General Assembly approval was Pennsylvania.

01:08 - 11.353 And there's a specific clause under ABCa that says you can do all these things,

01:08 - 15.133 including interstate compact subject, our authorization.

01:08 - 17.393 Why didn't we just submit it to the General Assembly?

01:08 - 19.205 Well, I don't believe the

01:08 - 22.374 department was obligated to submit it to the General Assembly because, as Mr.

01:08 - 24.076 Hazlitt argued,

01:08 - 26.378 the regulation is not an interstate compact.

01:08 - 29.247 But with regard to the premise underlying your question,

01:08 - 32.217 which is what has the General Assembly said here?

01:08 - 36.354 The General Assembly said more than just protect our air resources, right.

01:08 - 39.949 They provided that basic policy choice in the purpose of the statute.

01:08 - 44.420 They provided a framework to define the pollutants subject to regulation.

01:08 - 48.366 They authorized specific rules and mechanisms, as Mr.

01:08 - 51.927 Hazlitt identified, to prevent and reduce air pollution.

01:08 - 54.506 They authorized the collection of fees, they said.

01:08 - 56.308 Were those fees were going to go.

01:08 - 59.845 I mean, this is more than just a sort of wishy washy protect air resources.

01:08 - 05.317 The statute lays out specific ways and mechanisms to accomplish it.

01:09 - 09.621 And I think it's also important to look back at when this statute was enacted.

01:09 - 11.590 What was the General Assembly looking at?

01:09 - 13.358 They were looking at smokestacks.

01:09 - 15.861 They were looking at these kinds of industrial facilities

01:09 - 19.664 that are exactly what the Reggie regulation regulates.

01:09 - 25.070 It's really consistent with the intent and purpose, as well as with the statutory

01:09 - 29.074 authorizations given in the council that you're looking at smokestacks,

01:09 - 32.677 maybe they're looking at every family, individual automobile

01:09 - 36.338 that was going down the road, blowing up CO2, carbon emissions.

01:09 - 38.674 And maybe they thought, well,

01:09 - 41.920 that's where we want to look now.

01:09 - 43.355 And I asked Mr.

01:09 - 47.692 Hainsworth whether this could be used to create a market

01:09 - 51.997 for every family in Pennsylvania to have to go through a Reggie auction

01:09 - 56.134 to buy the carbon emissions so that they can take their kids to school

01:09 - 59.161 and go grocery shopping with their privately owned, gas

01:09 - 02.998 powered automobile.

01:10 - 06.746 First,

01:10 - 10.339 we haven't seen that kind of regulation of mobile sources, right?

01:10 - 15.211 Anything like, Reggie or that have now.

01:10 - 17.656 Well, I would disagree with that.

01:10 - 19.291 Justice Monday, I think, as Mr.

01:10 - 21.193 Hazlitt pointed out, the department has engaged in

01:10 - 25.697 these kind of trading programs for years through the acid rain that, sulfur

01:10 - 30.168 dioxide programs told us that the acid rain program

01:10 - 34.863 didn't involve a market with, interstate commerce, with other states.

01:10 - 37.008 It involves other states, Your Honor,

01:10 - 40.836 but it doesn't that the allowances were handed out by the department.

01:10 - 43.548 So they didn't come at a cost to the regulated entities.

01:10 - 44.549 They were limited.

01:10 - 46.017 They were tradable with other states.

01:10 - 47.586 It's a regional program.

01:10 - 50.355 They were for creating a market

01:10 - 53.024 where people had to bid on the product.

01:10 - 55.517 There weren't bids. That's correct. They were allocated.

01:10 - 57.129 And in

01:10 - 00.155 part because the nature of the problem was different.

01:11 - 02.767 We are talking about a different type of pollution.

01:11 - 07.496 We're talking about a different problem, a problem that the department

01:11 - 10.475 determined it needed to address

01:11 - 14.703 comes from cars different from the CO2 that comes from smokestacks.

01:11 - 17.983 It's not a different pollutant around, but it's a matter of scale.

01:11 - 21.786 It's a matter of the agency saying this is a problem,

01:11 - 24.847 that we're required under the Air Pollution Control Act to address.

01:11 - 28.017 And what is the best way for us to address the problem?

01:11 - 31.329 Documentation that before this court

01:11 - 35.591 that indicates that the CO2 that you're addressing

01:11 - 38.737 is the CO2 that's being created by these,

01:11 - 41.797 electrical manufacturers.

01:11 - 46.402 I mean, Japan, China, India.

01:11 - 49.848 No, none of those countries have this type of program.

01:11 - 54.576 And only 11 other states in the United States had this program.

01:11 - 58.223 Just last year, we had tons of smoke

01:11 - 01.626 coming over from Canada, from, wildfires.

01:12 - 02.994 How do you know that?

01:12 - 06.264 The CO2 that you're addressing

01:12 - 10.125 is the ones that are coming from the electrical smokestacks?

01:12 - 14.963 Pennsylvania has made a determination here

01:12 - 18.877 to address air pollution, and the department can only regulate

01:12 - 22.838 those sources in Pennsylvania, its authority is limited to Pennsylvania.

01:12 - 26.584 So the department can't regulate Canadian wildfires, of course, or emissions

01:12 - 27.286 in other places.

01:12 - 30.779 But the department can say we have a problem here.

01:12 - 33.892 We have regulated sources in Pennsylvania, and

01:12 - 36.895 it's our duty under the Air Pollution Control Act.

01:12 - 40.522 And as a trustee of Pennsylvania's Public Natural Resources

01:12 - 44.602 to do our job Council, you just hit on the point.

01:12 - 47.339 I keep coming back to the air.

01:12 - 50.366 Pollution is not just limited to Pennsylvania.

01:12 - 51.644 It is.

01:12 - 53.011 It's a national.

01:12 - 55.447 In fact, it's probably a world problem.

01:12 - 58.016 Air travel is freely from one state to the next.

01:12 - 02.077 This particular registration or regulation regulates

01:13 - 05.881 Pennsylvania industry in a certain way, and it does so

01:13 - 08.526 by entering into an agreement and you can say all you want.

01:13 - 10.195 It's not an interstate compact,

01:13 - 13.198 but the legislation doesn't say anything about compacts.

01:13 - 15.166 It says compacts or agreements.

01:13 - 17.736 You would agree with me that Reggie requires an agreement

01:13 - 22.440 among the participating states to enter into this particular program.

01:13 - 23.309 Right?

01:13 - 24.376 It can. Pennsylvania.

01:13 - 27.403 You can also do this by itself under the regulation.

01:13 - 28.947 But the way it's anticipated,

01:13 - 32.341 it gives Pennsylvania the registration to let the authority to do that.

01:13 - 33.786 I'm sorry.

01:13 - 37.021 Can you repeat that question for what specific point

01:13 - 40.082 under ABCa or subsection under app that allows Pennsylvania

01:13 - 43.252 to enter into an interstate compact agreement by itself

01:13 - 46.664 or agreement with another state?

01:13 - 47.299 See this.

01:13 - 49.901 This particular provision I keep coming back to says

01:13 - 51.903 they can do all of these things you're talking about,

01:13 - 54.272 and they should do all of these things you're talking about.

01:13 - 57.008 But it's got to be a policy determination

01:13 - 00.002 made under and subject to approval by the General Assembly.

01:14 - 02.647 And we've already established that didn't occur here.

01:14 - 05.116 So Pennsylvania, doing it by itself

01:14 - 07.752 would really be nothing more than catastrophic

01:14 - 10.955 to Pennsylvania industry if no other state entered into this compact agreement.

01:14 - 11.791 Right?

01:14 - 14.392 Pennsylvania did decide, yes, that the best way to do this

01:14 - 18.963 would be to participate with other states in the regional marketplace.

01:14 - 20.665 And I do agree with the points that Mr.

01:14 - 24.460 Hazlet made about, the,

01:14 - 28.473 that it's not an interstate compact and that the General Assembly

01:14 - 32.277 had the opportunity through the regulatory review process to,

01:14 - 37.081 to, to to decide to not permit Pennsylvania to do this.

01:14 - 41.719 And they didn't, did not I mean, they had they had multiple opportunities

01:14 - 43.555 through that process to say this is a compact

01:14 - 46.357 or to an otherwise change their policy determination.

01:14 - 47.926 And they did not do that.

01:14 - 48.494 And so can I.

01:14 - 51.162 Can I get you back to the era, which is sort of what you

01:14 - 53.755 what your it's your jam, right? Correct.

01:14 - 56.635 If we, if we

01:14 - 59.637 ruled this was a tax and we affirmed

01:14 - 02.698 the Commonwealth Court, would we be violating article one, section 27?

01:15 - 06.001 Yes, I believe we it's our position that you would be

01:15 - 08.813 because a tax is enacted

01:15 - 11.840 for the purpose of raising general revenue,

01:15 - 14.886 and then the revenue goes to the general fund.

01:15 - 18.046 And these proceeds here can not.

01:15 - 20.758 Well, that's a you're giving me a different analysis.

01:15 - 23.785 You're giving me the analysis of why it's not a tax.

01:15 - 27.365 I'm saying, are you saying anything that is levied by DEP

01:15 - 31.803 if it's in furtherance of ABCa and consistent with article one,

01:15 - 37.876 section 27 is a first jury constitutional under article in section 27.

01:15 - 41.770 And we are as long as it's in furtherance of article one, section 27,

01:15 - 44.382 nothing else matters. No, that's not what I'm saying, Your Honor.

01:15 - 45.683 Okay, so why so?

01:15 - 50.088 So if we say, look, this thing is in furtherance of nobody's questioning,

01:15 - 52.457 this is in furtherance of article one, section 27.

01:15 - 53.791 It's great that they did this.

01:15 - 56.528 They it's in furtherance of a protecting the environment,

01:15 - 57.662 all those kinds of things.

01:15 - 00.031 But we find some other constitutional deficiency.

01:16 - 02.033 Let's say it was a statute and not a regulation.

01:16 - 04.869 And it was a log rolling statute. Let's say it violated the single subject.

01:16 - 09.541 Well, we'd be violating article one, section 27, if we struck a statute

01:16 - 12.634 or regulation down on some other constitutional ground.

01:16 - 14.746 No, Your Honor, that's not our position.

01:16 - 20.118 Our position here is that article one, section 27 provides additional evidence

01:16 - 23.388 and a source of limitation for the department spending the proceeds.

01:16 - 27.516 And that in order to evaluate whether this regulation is a tax,

01:16 - 30.528 you need to look at the additional limitations that section

01:16 - 34.089 27 places upon the trustee here.

01:16 - 37.035 These proceeds can't be general revenue.

01:16 - 37.836 Well I know well okay

01:16 - 41.873 so but but we don't need article one seven section 27 to support that.

01:16 - 44.967 We know what we know that the money is going into the Clean Air Fund.

01:16 - 48.637 We I mean that's what I'm saying is I'm not sure how the outcome here.

01:16 - 49.148 I mean,

01:16 - 52.407 you said we would be violating article one, section 27 if we ruled against you.

01:16 - 57.922 So, I mean, but if we say it's a violation of some other constitutional provision,

01:16 - 01.717 do you want to you want to amend your amend your answer to my question?

01:17 - 03.995 I do and I think I was answering a different question

01:17 - 06.698 that I thought you were asking Justice Broughton, which I shouldn't have done.

01:17 - 09.601 If you find that this is a tax

01:17 - 12.170 and that the funds would go to the general revenue

01:17 - 16.064 that that finding would violate section 27,

01:17 - 20.712 because under section 27 it can't the proceeds can't become general revenue.

01:17 - 21.879 They can't go to the general.

01:17 - 25.249 I again I'm going to I'm going to dicker with your your your analysis.

01:17 - 26.273 There.

01:17 - 28.720 Article one, section 27

01:17 - 32.724 says nothing about what substantive

01:17 - 35.884 legislation should or should not provide with regard to the source of funds.

01:17 - 39.187 I could pass as I could you know, the Commonwealth.

01:17 - 42.333 General Assembly may very well pass a statute that says, look

01:17 - 46.962 consistent with our our, trustee authority on article one, section 27.

01:17 - 52.100 We're going to impose a X on on all of you.

01:17 - 53.311 I'm say it's cars.

01:17 - 55.213 Let's say it's, you know, automobiles.

01:17 - 58.240 We're going to put a CO2.

01:17 - 01.510 They can call it widget, a CO2 widget on something.

01:18 - 05.213 You would be there with your flag championing the fact

01:18 - 08.993 that that well, this is this is article one, section 27 power.

01:18 - 09.962 This is fantastic.

01:18 - 13.965 We're going to this is we have to do this, but we may find it unconstitutional

01:18 - 14.867 for another reason.

01:18 - 17.893 That doesn't mean we've violated that doesn't mean the law.

01:18 - 19.604 The law can be entirely consistent

01:18 - 22.631 with article one, section 27, but nonetheless fail

01:18 - 26.711 in the tax versus fee question has nothing to do with article one.

01:18 - 27.779 Section 27.

01:18 - 30.806 It has to do with the exclusive taxing power in the Constitution.

01:18 - 32.874 A different provision of the Constitution

01:18 - 36.387 out. I agree with the first part of your point,

01:18 - 38.056 and I disagree with the second part of your point.

01:18 - 41.292 Could the General Assembly enact something else consistent with article

01:18 - 43.661 one, section 27? Of course.

01:18 - 45.363 Where would those proceeds go?

01:18 - 48.800 Then back into the corpus of the trust to be used for trust purposes.

01:18 - 52.828 So in your income, as long as they do that, it doesn't matter

01:18 - 56.307 if it violates some other provision of the Constitution.

01:18 - 57.575 No, that's not what I'm saying, Your Honor.

01:18 - 01.446 What I'm saying is that what's before the court here is a challenge

01:19 - 05.207 to this regulation, saying that it was passed to raise revenue.

01:19 - 06.918 That's what the Commonwealth Court talked about.

01:19 - 10.812 It talked about how much revenue this regulation was going to pass

01:19 - 14.015 and found that to be an unconstitutional tax.

01:19 - 18.730 Our contention is that the Commonwealth Court neglected to look at the limitations

01:19 - 22.667 imposed by article one, section 27, in making that evaluation.

01:19 - 27.105 And had it looked at the restrictions that article one, section 27 places

01:19 - 30.108 upon the use of proceeds derived from the trust,

01:19 - 33.135 it would have said, oh, this isn't for raising revenue.

01:19 - 35.046 I guess this is for trust purposes.

01:19 - 37.815 So you're saying revenue revenue?

01:19 - 41.743 You're you're limiting revenue to general fund revenue?

01:19 - 44.288 Yes. You're it's exclusively general fund revenue.

01:19 - 48.583 If there's the General Assembly passes something that taxi fee,

01:19 - 54.256 and creates revenue that goes into the trust.

01:19 - 57.602 No violation of any other provision of the Constitution.

01:19 - 00.796 If the if were no violation of the taxing power,

01:20 - 03.040 as long as the money,

01:20 - 06.043 as long as the revenue generate is going for a specific purpose in article

01:20 - 09.070 one, section 27, you can never have a taxing challenge.

01:20 - 12.707 I'm saying in response to the specific taxing challenge raised here,

01:20 - 16.521 what I'm asking you about, general, as long as as long as the revenue

01:20 - 21.926 generating device fee tax widgets, as long as the proceeds of whatever

01:20 - 24.328 that is the revenue, because it is revenue.

01:20 - 29.500 The revenue generated goes into purely targeted

01:20 - 33.738 funding toward the environment, i.e the corpus under article one, section 27.

01:20 - 35.506 It can never be a tax

01:20 - 38.442 as long as it's authorized and there's no other problems with it.

01:20 - 40.411 I mean, perhaps we could come up with a world

01:20 - 42.146 where there's some other problem that's going on,

01:20 - 44.081 but that's not what the case is here.

01:20 - 49.420 But the opposite of that, would be, you would suggest that

01:20 - 53.882 if the proceeds of the sale of er

01:20 - 57.228 went to the general fund,

01:20 - 00.097 that would violate article one, section 27.

01:21 - 01.766 That's correct, Your Honor.

01:21 - 02.668 That's how it would.

01:21 - 04.936 I understood your argument to be. That's correct. Own.

01:21 - 07.963 But but further that any levy then

01:21 - 11.075 any levy,

01:21 - 15.804 that is indisputably attacks in any enterprise or field

01:21 - 18.182 of endeavor

01:21 - 23.411 becomes a fee if it is directed to be segregated into the,

01:21 - 28.283 Clean Air Fund or something else consistent with article one, section 27.

01:21 - 30.628 No, that's not what I'm saying, Your Honor.

01:21 - 35.023 I'm saying that the challenge before this court is that this constitutes a tax,

01:21 - 38.736 and a tax, by its very nature, raises general revenue.

01:21 - 40.271 We look at the purpose of the charge.

01:21 - 42.039 Is it to raise general revenue?

01:21 - 44.976 And does the revenue go into a general fund?

01:21 - 47.812 Those are the two fundamental characteristics of a tax.

01:21 - 51.806 Yeah, but a fundamental characteristics of a fee is that it is used to

01:21 - 55.510 it is imposed by the government to defray the cost of administering the program.

01:21 - 58.689 If we ever have a situation like we have here where we're raising,

01:21 - 02.784 I'm just using these numbers $1 billion through the sale of these credits.

01:22 - 07.923 And that regulatory program costs a couple hundred thousand dollars to administer.

01:22 - 11.927 That's one of the hallmarks of a tax versus fee issue.

01:22 - 12.771 You do.

01:22 - 14.839 You're absolutely correct, Your Honor.

01:22 - 16.574 We need to look at the regulatory program.

01:22 - 20.678 But what the Commonwealth Court did here and what a police have done is define

01:22 - 23.381 that regulatory program so narrowly

01:22 - 26.017 as to forget that the purpose of the regulation

01:22 - 29.010 and the purpose of the statute that authorizes the regulation

01:22 - 31.155 is to protect our air resources.

01:22 - 34.182 So the so you're saying that they can charge,

01:22 - 36.527 they can charge $1 billion.

01:22 - 38.729 And as long as it's used for clean air, it's good.

01:22 - 40.464 In other words, what they did with the Commonwealth Court

01:22 - 43.892 there was look at the entire budget for DEP and say theoretically,

01:22 - 47.071 the amounts of the revenues that are going to be generated

01:22 - 51.943 through the sale of these particular auctions could be 1.3 $1.4

01:22 - 56.171 billion, which is 3 or 4 times the actual entire budget of the DEP.

01:22 - 59.417 Therefore, it's got to be a tax, not a fee, because it has nothing to do

01:22 - 02.420 with the costs to defray the regulatory program.

01:23 - 05.523 I think what you're telling us is that that doesn't make a difference.

01:23 - 07.625 What should be looked at is where the money goes to

01:23 - 09.894 and what it's used for, and that's that's it.

01:23 - 11.028 I'm not saying that's it.

01:23 - 11.263 You're on,

01:23 - 12.930 but I am saying that the Commonwealth Court

01:23 - 16.567 didn't look at the whole regulatory program when it made that analysis.

01:23 - 18.636 It concluded that this was a lot of money.

01:23 - 18.937 Right.

01:23 - 19.938 And it looked at the cost

01:23 - 22.964 to administer an auction and the cost to participate with dredging.

01:23 - 26.801 But it didn't look at what is the Commonwealth trying to do with that money.

01:23 - 29.714 It's trying to spend a third of that money on energy efficiency.

01:23 - 32.616 It's trying to spend a third of that money on renewable energy programs.

01:23 - 33.452 If it doesn't, that

01:23 - 36.478 that's that's somewhat problematic in and of itself, don't you think?

01:23 - 40.448 I mean, I'm not suggesting that those aren't those aren't good decisions.

01:23 - 41.993 I would suggest that

01:23 - 44.729 maybe their policy decisions best less for the General Assembly.

01:23 - 48.590 But if you're going to basically regulate one particular industry

01:23 - 51.893 and then use the money from the regulation of that industry

01:23 - 55.573 to put it out of business, isn't that a policy decision

01:23 - 59.667 that the General Assembly should make, or or is it a strict article one, section 27

01:23 - 03.371 when you clean air, when you clean water to help with those particular industries,

01:24 - 07.018 I don't I don't believe that this is,

01:24 - 10.045 an attempt to put a particular industry out of business.

01:24 - 13.891 I think this is an attempt to regulate a pollutant pursuant to their statutory,

01:24 - 17.661 into regulating a pollutant that's that's derived from the fossil fuel industries.

01:24 - 21.322 And if you're going to take the money from that for alternative alternative

01:24 - 24.492 fuel sources are energy sources by necessity,

01:24 - 27.695 aren't you putting those particular industries out of business?

01:24 - 30.775 No, no, Your Honor, I don't believe so.

01:24 - 32.977 Because the cap doesn't decline to zero.

01:24 - 36.247 There's no requirement that any in this particular source

01:24 - 40.442 or any particular industry shut down that the General Assembly

01:24 - 45.146 told the Department of Environmental Protection, protect air quality.

01:24 - 47.158 It's now the highest priority.

01:24 - 49.393 It's one of the highest priorities of the Commonwealth.

01:24 - 51.362 And this court said that in the Locust point case,

01:24 - 53.564 and this is the department attempting to do that.

01:24 - 54.765 Now, the department can decide

01:24 - 57.368 the mechanism one had submitted to the General Assembly.

01:24 - 59.770 If your position is the General Assembly told us to do it,

01:24 - 00.838 why didn't you just submitted

01:25 - 04.232 to the General Assembly and say here, pass legislation to interested in the Reggie?

01:25 - 07.068 Simple. We're not here to

01:25 - 11.039 oh, she's not the DEP.

01:25 - 13.284 Can the General Assembly,

01:25 - 16.554 you know, can made its policy choices in the Air.

01:25 - 19.614 Pollution control Act and said regulate carbon dioxide

01:25 - 22.359 and this is a department's attempt to regulate carbon dioxide.

01:25 - 22.961 Council.

01:25 - 26.063 I as I understand your argument, section

01:25 - 29.324 9.2, of the ACPa,

01:25 - 34.105 is consistent entirely with article one, section 27,

01:25 - 37.899 because it provides, in short, all fines collected.

01:25 - 42.413 Shall be administered by the Department

01:25 - 45.607 for use in the elimination of air pollution.

01:25 - 48.719 So it's a specialized fund

01:25 - 52.313 into which the proceeds are placed

01:25 - 58.019 in order to eliminate air pollution, as provided in section 9.2.

01:25 - 00.131 That's correct, Your Honor.

01:26 - 03.834 And if, if someone my

01:26 - 09.473 my organ, my clients or another entity believed that the department was utilizing

01:26 - 13.310 those funds in a way that violated section 27 under this court's precedent,

01:26 - 16.280 in the most recent version of the PDF cases,

01:26 - 19.116 a challenge could be brought to say you're not doing your accounting,

01:26 - 20.618 you're not spending them right there.

01:26 - 23.020 There could be a takings class challenge.

01:26 - 24.488 There isn't one.

01:26 - 28.025 You know, the notion that, industries are being put on business

01:26 - 29.026 and things of that nature.

01:26 - 32.029 There is no Takings Clause challenge in this case.

01:26 - 37.559 I mean, I keep sort of harkening back to the limited nature of the issue before us.

01:26 - 39.837 That's absolutely correct, Your Honor.

01:26 - 41.162 There's no takings.

01:26 - 44.208 There's nothing being taken here.

01:26 - 47.011 There's no private property that's been taken.

01:26 - 51.081 The argument that, or the questions that are consistently being asked

01:26 - 56.320 have to do with the, impact on the industries being regulated.

01:26 - 00.925 I mean, there may be takings quite a challenge somewhere in the mix of,

01:27 - 03.952 that analysis, but we don't have it here.

01:27 - 04.729 That's correct.

01:27 - 06.697 You do not have anything like that before you.

01:27 - 09.691 Your honors.

01:27 - 11.135 If there are no other questions,

01:27 - 14.262 I, I, I do have one last question.

01:27 - 18.266 You may have already answered this in response to just astonish you, but

01:27 - 22.880 is there any way that this can be a tax?

01:27 - 28.285 And as long as a certain amount of funds are funneled

01:27 - 33.481 by the legislature into the Environmental Protection Fund,

01:27 - 38.052 that it could be constitutional under the IRA.

01:27 - 39.931 I don't believe

01:27 - 44.668 so, Chief Justice Todd because I believe that that in essence says

01:27 - 46.170 that it's not a tax,

01:27 - 49.864 because if the fundamental characteristic of a tax is that it's to raise revenue

01:27 - 51.842 fund, I know. Exactly.

01:27 - 56.280 So I think at that point in the analysis, you're, you're asserting that it's

01:27 - 00.784 not a tax, that it's a fee, and that those limitations that come from

01:28 - 02.886 the IRA as well as from the statute

01:28 - 06.724 and the regulatory framework here are all in play.

01:28 - 09.984 So I don't think you'd be reaching a conclusion on the tax.

01:28 - 12.329 Okay. Thank you very much. Thank you.

01:28 - 13.464 Thank you.

01:28 - 16.166 Let's hear from the, appellee, Mr.

01:28 - 18.502 Fine,

01:28 - 21.529 on behalf of in.

01:28 - 28.380 May it please the court.

01:28 - 29.580 My name is David Fine.

01:28 - 33.908 I represent a consortium of electrical generating companies

01:28 - 35.986 that use fossil fuels.

01:28 - 37.755 I'm joined at counsel.

01:28 - 42.216 Well, not a table, but a council chairs by my partner, Tad McFarland.

01:28 - 46.597 And by Bridget Landy Curry of the McNeese

01:28 - 50.191 Wallace law firm, who represents the Senate parties.

01:28 - 53.737 With the court's permission,

01:28 - 56.731 I will argue three issues, principally,

01:28 - 59.443 the first is the tax versus fee issue.

01:28 - 02.470 The second is the statutory authorization issue,

01:29 - 05.582 and the third is the non delegation issue.

01:29 - 10.078 Miss Currie will address the ERA and any other issues,

01:29 - 12.489 including the interstate compact issue

01:29 - 14.858 that's been discussed and that the Senate raised.

01:29 - 18.562 I know in its brief is there a third person is going to cover cattle

01:29 - 20.664 and methane?

01:29 - 22.700 You're.

01:29 - 26.294 Your honor, technically, my undergraduate degree is from an agriculture college,

01:29 - 29.597 so I would feel competent to discuss that.

01:29 - 34.978 Just make the question simple, please.

01:29 - 37.314 72 years ago, Chief Justice Horace.

01:29 - 40.341 Stern wrote in National Biscuit Company

01:29 - 43.544 that this court's task, when presented with a statute,

01:29 - 48.015 is not to delve into the wisdom of it or the policy underlying it,

01:29 - 51.452 but the power of the General Assembly to enact it.

01:29 - 54.398 This case presents a very similar question,

01:29 - 59.460 but in the context of regulations promulgated by administrative agencies,

01:30 - 02.973 nothing in this case asks the court to decide

01:30 - 07.468 whether the policy underlying Reggie is good, bad or indifferent.

01:30 - 10.547 The question is whether executive agencies

01:30 - 13.908 under our Constitution have the power to implement it

01:30 - 18.279 without a single person in this building raising a hand in favor of it.

01:30 - 22.250 And the answer to that is no, they did not have that power.

01:30 - 26.187 There are certain things that are indisputable.

01:30 - 32.794 Reggie would have tremendous economic impacts, negative impacts in Pennsylvania.

01:30 - 36.940 There was a question asked of one of the folks on the other side of the lectern,

01:30 - 40.435 what would have been earned had Pennsylvania been participating.

01:30 - 41.945 That's fairly simple math.

01:30 - 44.415 He said that he didn't know, but it is fairly simple math.

01:30 - 47.442 If you take the number of allowances that would have been offered,

01:30 - 51.455 and that's in the regulation, and if you then take

01:30 - 56.617 what the auction prices were, which have in each auction since

01:30 - 02.123 commencement of Reggie vastly exceeded the DPI modeling or the cube modeling,

01:31 - 05.526 and what would have been earned in at least one auction

01:31 - 10.698 back in September of last year would have been millions of dollars,

01:31 - 14.135 and in the course of a year, it would have been $2 billion.

01:31 - 15.612 At the current price.

01:31 - 18.773 In March, it was $19.76.

01:31 - 21.785 It would be $1 billion a year.

01:31 - 25.513 That's multiple times the entire DEP budget

01:31 - 28.850 in the federal budget granted by the General Assembly.

01:31 - 34.021 All of that without the General Assembly having voted in favor of it.

01:31 - 38.759 This will cripple an industry, this will imperil jobs,

01:31 - 43.030 and it will also imperil investment in Pennsylvania business.

01:31 - 46.834 I'm a little confused by your argument because you just started with.

01:31 - 48.545 National Biscuit.

01:31 - 52.149 Yes. Which told us not to look at the policy ramifications,

01:31 - 53.450 whether it's good, bad or indifferent.

01:31 - 56.086 And now you're launching into how bad it is.

01:31 - 58.956 Well, Your Honor, I'm not asking you to decide that the policy is bad.

01:31 - 00.324 I'm asking you to decide

01:32 - 04.061 that something of that magnitude should be decided by the General Assembly.

01:32 - 06.964 A couple of, I guess, I guess. Why the waiver?

01:32 - 07.398 If a fee.

01:32 - 10.567 Just if a fee just so happens to generate a lot of revenue, but

01:32 - 14.872 it goes into a designated fund and it's not going to the general fund.

01:32 - 20.401 I have been told, relatively recently that it stays to be a fee because it's

01:32 - 22.179 consistent with article one, section

01:32 - 25.415 27, and the tax is only a tax if the money goes into the general fund.

01:32 - 26.617 That's what I have been told.

01:32 - 30.645 I think what you've been told is mistaken, your Honor, a fee

01:32 - 35.826 under National Biscuit and other cases from this court, a fee.

01:32 - 37.594 And I think just McCaffrey referred

01:32 - 41.455 to this earlier when some of the folks were up, speaking to the court,

01:32 - 46.093 a fee is used to offset the cost of the Commonwealth of providing a service.

01:32 - 49.172 If I want to go fish in a lake nearby.

01:32 - 50.407 I live in Cumberland County.

01:32 - 52.142 I go and I get a fishing license.

01:32 - 54.678 Right now it costs just shy of $30.

01:32 - 58.439 That money goes to the Fish and Boat Commission to offset the cost of

01:32 - 00.017 of processing.

01:33 - 01.151 My application

01:33 - 05.179 of having a fish and boat officer make sure that I don't take too many fish.

01:33 - 07.658 That's a fee.

01:33 - 09.960 That's not a revenue generator.

01:33 - 11.528 And I know justice.

01:33 - 15.489 And you, we're struggling a little bit with it.

01:33 - 16.501 Maybe you weren't struggling.

01:33 - 18.535 Maybe you were quite certain all the time.

01:33 - 21.562 If this is that that the Reggie

01:33 - 25.909 revenue is a unicorn because it doesn't look like anything.

01:33 - 27.077 The court has seen.

01:33 - 28.178 And and I would submit.

01:33 - 29.646 That's absolutely right.

01:33 - 33.083 It is much more like a tax than it is like a fee.

01:33 - 37.120 We know from National Biscuit Company that it can't be a fee, but we have to care.

01:33 - 40.691 Do we have to care or I mean, in order to decide this appeal,

01:33 - 43.818 do we have to come down A or B, or can we say C?

01:33 - 49.223 You can say C, your honor, because C is it's still revenue

01:33 - 52.536 and revenue under article three, section ten

01:33 - 55.272 revenue measures have to originate in the House of Representatives.

01:33 - 56.440 In this building.

01:33 - 00.201 So it cannot come from an administrative agency down the street from here.

01:34 - 03.914 Council, can I ask you then what section 9.2 means,

01:34 - 08.142 which says that all fees collected under this act

01:34 - 11.154 shall be administered by the Department

01:34 - 14.382 for use in the elimination of air pollution.

01:34 - 17.427 What it means not a that is not

01:34 - 20.454 a, administrative fee.

01:34 - 23.133 That is a regulatory fee.

01:34 - 25.035 Your honor, I think you're making a distinction

01:34 - 27.337 that that I'll submit as one without a difference.

01:34 - 28.972 It is a fee.

01:34 - 32.099 And that's the only thing that section 6.3,

01:34 - 35.045 which our opponents rely on so heavily permit.

01:34 - 39.449 And in fact, section 6.3 says fees for the direct

01:34 - 43.310 and indirect cost of administration of these programs.

01:34 - 45.922 And it's not surprising that that would be the case.

01:34 - 50.751 Section 6.3 was added to the Air Pollution Control Act in 1992.

01:34 - 55.565 So 40 some years after the decision,

01:34 - 00.070 a national biscuit company told the court what a fee is at all.

01:35 - 01.838 I'm told the General Assembly.

01:35 - 02.306 And of course,

01:35 - 06.233 we know that the General Assembly acts with knowledge of what this court says.

01:35 - 09.546 So those are fees that are permitted.

01:35 - 11.615 Okay, now back to justice wax question.

01:35 - 15.385 So can I just put you back to section 9.2 for a moment?

01:35 - 19.122 Yes, Your Honor, because 9.2 specifically says

01:35 - 23.326 that fees collected under this act shall be paid into the Treasury

01:35 - 28.923 of the Commonwealth in a special fund known as the Clean Air Fund.

01:35 - 31.168 It is not general revenue,

01:35 - 35.529 I mean, but by by definition in the statute, it is not general revenue.

01:35 - 36.507 That's right.

01:35 - 38.041 But it's also not a fee.

01:35 - 39.576 Yes, it is a fee itself.

01:35 - 44.638 Fees collected shall be paid into the Clean Air Fund.

01:35 - 47.384 Let me back up, Justice Donohue.

01:35 - 49.986 It does permit fees, but that's not what Reggie.

01:35 - 51.855 Yes, Reggie is not a fee.

01:35 - 54.882 So the fact that a fee is permitted by the statute

01:35 - 58.829 and the proceeds of that fee are to be put into the Clean.

01:35 - 02.356 Air Fund is of no moment, because that's not what Reggie does.

01:36 - 05.726 Reggie, as Justice Robson has pointed out,

01:36 - 08.505 is, I use the term unicorn.

01:36 - 11.041 I'll use it again. It's a bit of a unicorn, right?

01:36 - 15.636 It's it's a sale on a private marketplace

01:36 - 20.341 of the ability to emit carbon dioxide.

01:36 - 24.278 Now, that's closer to a tax, but you don't have to decide that it's a tax

01:36 - 28.115 to affirm the injunction by the Commonwealth Court.

01:36 - 31.661 Then, in response to Justice Donohue, what fees,

01:36 - 34.688 is that provision referring to?

01:36 - 39.035 It could be fees for, hiring officers

01:36 - 42.296 to prepare permits to do inspections.

01:36 - 46.433 All of those things are part of the cost of providing

01:36 - 50.914 the benefit that the Air Pollution Control Act allows.

01:36 - 54.775 I think I think the chief Justice, his question was, what

01:36 - 57.120 any kind of puts the rabbit at,

01:36 - 01.224 what fees does that that provision applies to fees. Yes.

01:37 - 02.292 Your argument is not that.

01:37 - 04.394 That provision doesn't say what it says.

01:37 - 06.396 Your argument is not that what is generated

01:37 - 08.565 in Reggie does not go into the Clean Air Fund.

01:37 - 11.668 Your argument is simply Reggie doesn't generate a fee.

01:37 - 15.372 Therefore that provision, because it authorizes fees to go in the general.

01:37 - 18.241 And that and the Clean Air Fund doesn't apply.

01:37 - 22.269 Chief justice, what he said, and that's that's optional.

01:37 - 23.247 I understand that.

01:37 - 26.407 I guess my question was just if it doesn't apply

01:37 - 30.253 to these fees because their taxes, what does that apply to?

01:37 - 32.522 And I and you, you've answered that.

01:37 - 33.657 Thank you, your Honor.

01:37 - 34.724 Like permitting fees.

01:37 - 35.193 Yeah.

01:37 - 37.327 Like it would be a permit if you apply, for example,

01:37 - 38.728 my fishing license for fishing.

01:37 - 41.755 Well, not well, not under the Air Pollution Control Act.

01:37 - 43.733 Emissions control fees.

01:37 - 45.735 Yeah, I think that's right. Justice worked.

01:37 - 46.269 All right.

01:37 - 46.837 Thank you.

01:37 - 47.538 Absolutely.

01:37 - 51.308 Now, I'd like to make,

01:37 - 54.768 three corrections, if I might, before moving into the specific issues.

01:37 - 58.582 One is, to, respect

01:37 - 02.986 fully Chief justice the way the the Reggie works, to my understanding.

01:38 - 04.688 And I stand ready to be corrected.

01:38 - 07.715 It's not that above a certain amount of,

01:38 - 10.660 emissions, you have to buy allowances.

01:38 - 13.821 If you are a plant of a particular size 25 megawatt,

01:38 - 16.967 you have to buy allowances for everything.

01:38 - 20.594 So it is it is a broader requirement

01:38 - 27.001 or or you can improve your equipment and not pay any allowance.

01:38 - 31.014 Well if you could if you could, that

01:38 - 34.517 meant and in the theoretical world, your Honor, in which you could improve

01:38 - 38.479 your equipment not to have even a ton of carbon dioxide, that is true.

01:38 - 41.291 I don't think that world exists.

01:38 - 46.020 Now. Second point is that there was talk of two other regulations

01:38 - 49.523 that my friends on the other side of the lectern say are similar.

01:38 - 53.536 They're not what they called NOx and Sox, nitrogen oxide

01:38 - 57.765 and sulfur oxide, the the acid rain regulations.

01:38 - 00.577 Number one, you don't have to buy the allowances.

01:39 - 03.570 So the whole tax versus fee issue

01:39 - 06.516 versus unicorn issue does not arise.

01:39 - 10.444 The second thing is that there is a statutory authorization

01:39 - 14.190 because the air pollution control zones that you have to follow the federal Clean.

01:39 - 18.428 Air Act and the federal Clean Air Act authorizes just such cap

01:39 - 19.663 and trade programs.

01:39 - 23.457 So that's different than what's happened here. Now,

01:39 - 26.670 I want to come back just as well to your question,

01:39 - 29.697 because you asked it, and I think it's

01:39 - 32.542 one that really needs to be answered.

01:39 - 35.278 Whatever this is,

01:39 - 39.540 it is a source of revenue and uncontrolled revenue,

01:39 - 43.510 and that is unconstitutional when coming from an agency.

01:39 - 46.947 So the court doesn't need to decide that the Commonwealth Court was correct,

01:39 - 48.458 that it was a tax.

01:39 - 51.452 Now, the third correction.

01:39 - 55.799 Don't we have to decide at something if it's not a fiscal, it's not a tax.

01:39 - 56.567 What is it?

01:39 - 59.235 It's a source of revenue, just a source of revenue.

01:39 - 00.337 It's a source of revenue.

01:40 - 00.972 In article three,

01:40 - 04.965 section ten says that has to come from the folks in this building.

01:40 - 08.144 I'd like to say it's uncontrolled.

01:40 - 11.181 Yes, it is controlled because it needs

01:40 - 14.308 to be, placed into the Clean Air Fund.

01:40 - 18.922 Your honor, I maybe I wasn't clear what I said was uncontrolled.

01:40 - 20.824 I didn't mean the use of it.

01:40 - 23.760 What I meant was the amount of it is almost under control.

01:40 - 25.996 Although it was perhaps a bit of dramatic lies.

01:40 - 26.797 Is it under control?

01:40 - 28.031 There's a market.

01:40 - 29.966 There's a market and justice work.

01:40 - 34.361 That marketplace includes not only folks like my clients who use the allowances,

01:40 - 36.039 but folks who trade them

01:40 - 39.900 as investments, and folks who who work on the environmental side

01:40 - 43.837 universe and unknown universe and unknown universe, and folks who, by the way,

01:40 - 47.074 buy them and park them on the credenza so that they can't be used

01:40 - 49.419 because they believe that that's appropriate

01:40 - 52.446 in furtherance of their goal regarding the environment.

01:40 - 54.024 So it is revenue.

01:40 - 57.994 The last, correction, if you will, that I'd like to make his respectfully

01:40 - 02.032 justice Donohue, you asked a question of one of the folks

01:41 - 04.334 who was at the lectern earlier about, well,

01:41 - 08.262 the sort of the statutory authorization piece wasn't separately appealed.

01:41 - 10.173 It didn't have to be appealed

01:41 - 11.908 because you only have to take a cross appeal

01:41 - 14.911 in Pennsylvania when you want to change something about the judgment.

01:41 - 16.746 And there wasn't anything about the judgment

01:41 - 18.848 that anybody on either side of the view wanted to change.

01:41 - 20.350 We got an injunction.

01:41 - 21.818 We were happy with that.

01:41 - 24.845 You simply argue it as an alternative basis for a amount.

01:41 - 26.556 And that's precisely what we did.

01:41 - 29.459 So there's no question about issue preservation.

01:41 - 32.686 Those issues are in the case now,

01:41 - 37.291 I would like to turn, if I might, to

01:41 - 42.362 the statutory authorization question, because that seemed to

01:41 - 44.207 to garner a fair bit of attention

01:41 - 47.267 when my friends on the other side of the lectern were here.

01:41 - 52.372 Number one, let's remember the context in which this issue arises.

01:41 - 56.243 This court has said that it is for the General Assembly

01:41 - 59.389 to alleges slate, and if it wants to delegate

01:41 - 04.118 to an administrative agency the power to legislate, it must do so.

01:42 - 07.588 Yes, sir. Clearly and unmistakably.

01:42 - 11.592 And so if there is some question, if you think, well, maybe

01:42 - 15.905 the Air Pollution Control Act is closely enough, that's not good enough,

01:42 - 19.766 because close enough goes to it's not constitutional.

01:42 - 21.978 It has to be clear and unmistakable.

01:42 - 24.314 Well, what's what's the evidence?

01:42 - 28.618 My friends on the other side of the aisle, I, Mr.

01:42 - 33.480 Hazlewood in particular, points to section 6.3 of the Air Pollution Control Act.

01:42 - 36.783 As I noted earlier, it authorizes fees

01:42 - 41.622 and fees are reimbursement to the Commonwealth for services offered.

01:42 - 44.334 It doesn't authorize anything beyond that.

01:42 - 48.495 Second, there's nothing in the Air Pollution Control Act

01:42 - 51.965 that looks like to go back to Justice Robson's earlier point.

01:42 - 55.111 That looks like you can have

01:42 - 58.047 an interstate commerce

01:42 - 01.074 with a privately run auction,

01:43 - 04.311 with private investors involved in determining

01:43 - 08.725 how much allowances will go for you, would search high and low in the Air.

01:43 - 14.154 Pollution Control Act for anything that looks even vaguely like that, and

01:43 - 18.325 since it has to be clear and unmistakable,

01:43 - 20.570 not having something that even vaguely looks like it

01:43 - 23.797 is the death knell on statutory authorization,

01:43 - 27.277 there is no proper authorization

01:43 - 30.304 for this regulation,

01:43 - 34.741 and it's not something that should go on repeated,

01:43 - 38.445 justice McCaffrey's point that of all of the

01:43 - 42.449 states and commonwealths,

01:43 - 45.428 ours is the only one that didn't do it statutorily.

01:43 - 47.096 We did it by regulation.

01:43 - 49.866 And frankly, it's because the General Assembly wouldn't vote for it.

01:43 - 50.134 Fine.

01:43 - 51.701 How do you respond to the argument on the other side

01:43 - 55.128 on this question of authority, that that simple,

01:43 - 58.141 one section

01:43 - 02.269 delegation of the power of the authority and duty, I'll even our duty

01:44 - 07.741 to abate air pollution in the Commonwealth of Pennsylvania with certain.

01:44 - 09.353 I don't want even

01:44 - 13.080 I don't want come guardrails but certain mechanical principles is enough

01:44 - 16.350 and that that that that is that is enough

01:44 - 19.519 to give them the authority to to do this.

01:44 - 20.897 My answer is twofold.

01:44 - 21.599 Justice, perhaps.

01:44 - 22.765 And number one,

01:44 - 26.026 that can't possibly be the case because it's not clear and unmistakable.

01:44 - 31.140 And if it were, then I think it was you who asked in a colloquy with, Mr.

01:44 - 32.275 Hazlitt.

01:44 - 32.977 We couldn't.

01:44 - 36.813 We have really short statutes in Pennsylvania that say you may regulate

01:44 - 40.007 all good things, and then the agencies could regulate all good things.

01:44 - 41.784 There has to be some direction.

01:44 - 45.245 And that's why second point, we have the non delegation principle,

01:44 - 49.483 which says that the policy has to be set by the General Assembly.

01:44 - 55.389 And it has to include second enough guideline enough.

01:44 - 00.227 Guardrails as they say nowadays,

01:45 - 04.464 that we know that there's not an arbitrary use of regulatory power.

01:45 - 07.968 And the reason for that, the reason for the non delegation doctrine

01:45 - 11.705 is because we want decisions about massive policies

01:45 - 16.085 to be made by people who are elected by the people, not bureaucrats.

01:45 - 18.755 And I don't say that in a in a pejorative way,

01:45 - 20.623 but they're not directly elected by the people

01:45 - 22.859 like the members of the General Assembly are.

01:45 - 24.727 And that's why we do that.

01:45 - 27.397 And that's why your Honor, I think it is important

01:45 - 29.299 you said, you know, why you're you're talking about,

01:45 - 34.461 you know, the remarkable economic impact of the Reggie because it demonstrates

01:45 - 37.497 why it really should be something decided by the General Assembly.

01:45 - 39.709 Justice Daugherty, I think, was pointing out

01:45 - 41.744 we're talking about loss of jobs,

01:45 - 44.614 which is, by the way, already occurred because of the uncertainty

01:45 - 45.449 of the regulation.

01:45 - 47.650 That was testimony in the Commonwealth Court,

01:45 - 51.211 the shuttering of large parts of a whole industry.

01:45 - 54.991 If that's to happen, that should be a decision.

01:45 - 58.385 A policy decision made by the General Assembly,

01:45 - 01.788 not by the Eqb and the DEP.

01:46 - 04.200 But that's not what happened here.

01:46 - 06.193 This is unconstitutional.

01:46 - 10.530 Now, if there are other questions, I'd be pleased to answer them otherwise.

01:46 - 14.711 I will did my time to Miss Curry.

01:46 - 17.146 Any other questions for Mr. Fogg?

01:46 - 17.648 All right.

01:46 - 19.115 Let's hear from this jury.

01:46 - 21.117 That was, by definition, a fine argument.

01:46 - 24.578 You've heard that before, haven't you?

01:46 - 26.622 Justice worked for 60 years.

01:46 - 28.958 I've been hearing those jokes.

01:46 - 31.952 But I have to tell you, that really was the best one.

01:46 - 41.504 May it please the court.

01:46 - 43.172 Good morning. Brigid Landy.

01:46 - 44.907 Quarry of McNeese Wallace in Norfolk.

01:46 - 47.643 On behalf of Senate appellees in this matter.

01:46 - 49.645 I'm here with my colleagues.

01:46 - 53.306 Drew Crompton, Austin Healey and Candace Hall of McNeese.

01:46 - 58.087 Also present are Jim Cuts and Aaron Kawa of Poston Shell.

01:46 - 01.791 They represent the house appellees in this matter and are available

01:47 - 04.527 if there are any questions specific to the house,

01:47 - 06.987 although they will not be making a presentation today.

01:47 - 09.133 Your honor,

01:47 - 13.293 when Pennsylvania voters ratified article one, section 27,

01:47 - 16.839 they did not simultaneously vote to override

01:47 - 20.000 existing provisions in our Commonwealth Constitution.

01:47 - 23.246 The authority to make law

01:47 - 27.674 and the authority to impose a tax are still vested in the General Assembly,

01:47 - 31.187 even assuming, as interest groups argue.

01:47 - 36.450 But we do not concede, that section 27 is applicable to the analysis of the Regio

01:47 - 42.165 rule making, and that the rule making is consistent with this court's precedent.

01:47 - 44.100 Interpreting section 27.

01:47 - 49.172 Again, we don't concede that either DPS still must be statutorily

01:47 - 52.199 authorized to promulgate the rule making in the first place,

01:47 - 54.911 and as it administrative agency DEP

01:47 - 58.171 cannot impose a tax in the name of environmental regulation.

01:47 - 01.117 Excuse me? Environmental protection.

01:48 - 01.652 As Mr.

01:48 - 05.011 Fine explained, the regio allowance charge is not a fee,

01:48 - 08.648 and the EPA does not authorize the rule making,

01:48 - 12.528 and the interest groups position introduces

01:48 - 16.523 additional constitutional concerns involving private property rights.

01:48 - 21.761 I want to note at the outset, however, if this court determines

01:48 - 25.131 that the Regio rule making either imposes a tax

01:48 - 29.769 or that it is otherwise outside the statutory authority delegated to DEP,

01:48 - 35.108 section 27 cannot remedy either of these constitutional violations,

01:48 - 39.689 and there's no need for further analysis or application of section 27.

01:48 - 41.390 In this case.

01:48 - 45.862 And I'd like to make one point before I turn to some of the, clarifying points.

01:48 - 51.324 Based on what's been said today, section 27 is not applicable here.

01:48 - 55.404 And to understand why, we have to look closely at the amendment

01:48 - 58.841 itself, which this court has stated unequivocally,

01:48 - 01.844 is divided into two parts.

01:49 - 05.772 The first sentence is a reservation of rights by the people.

01:49 - 09.886 Like other rights found in article one, it prohibits

01:49 - 13.046 state activity that infringes on those rights.

01:49 - 15.558 This court stated in its

01:49 - 19.452 2023 Marcellus Shale Coalition versus DEP decision,

01:49 - 25.234 quote, section 27 does not impose express duties on the I'm sorry.

01:49 - 29.362 The first clause of section 27 does not impose express duties

01:49 - 32.732 on the political branches to enact affirmative measures

01:49 - 36.612 to promote clean air, pure water, and the preservation

01:49 - 39.639 of the different values of our environment.

01:49 - 42.184 So that's the first clause.

01:49 - 45.621 And accordingly, there can be no cause of action to compel

01:49 - 47.356 the government to impose specific

01:49 - 50.617 police power restrictions, such as the regio rule making,

01:49 - 55.455 and interest groups do not invoked invoke this clause of the amendment.

01:49 - 56.900 Rather, they argue

01:49 - 00.794 Reggie is a valid police power restriction that should be imposed on others.

01:50 - 04.273 So the first sentence is not applicable.

01:50 - 06.976 The second clause reads as follows.

01:50 - 08.911 And I promise I'm not going to read much more on this,

01:50 - 12.214 but I want to make sure I get the language right again.

01:50 - 15.785 Section 27 is titled Not Environmental Rights Amendment.

01:50 - 19.279 It's called Natural Resources and the Public Estate.

01:50 - 25.051 The second clause reads this way Pennsylvania's public natural resources

01:50 - 29.198 are the common property of all the people, including generations.

01:50 - 30.733 Yet to come.

01:50 - 34.036 As trustees of these resources, the Commonwealth

01:50 - 37.464 shall conserve and maintain them for the benefit of all the people.

01:50 - 40.143 This clause

01:50 - 45.081 applies to public natural resources that are the common property

01:50 - 46.649 of all the people.

01:50 - 50.310 This interpretation is consistent with the plain language.

01:50 - 53.823 It's consistent with the legislative history,

01:50 - 58.127 which, if you examine this, the word public was not included

01:50 - 00.363 by the original proponents of the amendment.

01:51 - 03.390 It was added by the Senate before they voted to,

01:51 - 06.526 to move the amendment forward in the process.

01:51 - 10.272 And they did that specifically to avoid conflicting

01:51 - 13.500 with the fifth and 14th amendment of the US Constitution.

01:51 - 17.513 And finally, this interpretation, are you suggesting.

01:51 - 20.540 Council, the clean air and clean water aren't natural rights?

01:51 - 25.321 I am absolutely not suggesting that clean air and clean water

01:51 - 30.350 are not natural resources that are a priority to be protected

01:51 - 33.596 by, the General Assembly through properly

01:51 - 36.599 enacted statutes pursuant to the police power.

01:51 - 38.291 What I'm suggesting is that

01:51 - 40.303 predicate.

01:51 - 43.406 ING the analysis on the ownership by the Commonwealth

01:51 - 47.934 as part of a public trust changes that analysis significantly.

01:51 - 51.438 And would essentially be saying that how would it change it?

01:51 - 55.208 Well, currently, the analysis that

01:51 - 58.378 when you are dealing with environmental regulations,

01:51 - 03.459 the question is it's the state police power balance versus

01:52 - 06.696 private property rights, the ability to do what you like with your property

01:52 - 11.167 if it's to farm, if it's to build a home, there's lots of activities.

01:52 - 12.868 We don't don't all of those other rights.

01:52 - 14.203 We're talking about inalienable rights.

01:52 - 17.473 We talk about life, liberty, the pursuit of happiness is in clean

01:52 - 18.275 air and clean water.

01:52 - 20.676 I mean, you know, they're basic necessities

01:52 - 23.245 that basically establish the right to all the rest of them. Are they?

01:52 - 24.246 Absolutely.

01:52 - 28.217 What I'm saying is section 27 applies to public,

01:52 - 32.846 those those resources as they exist on public lands.

01:52 - 35.281 What the people of Pennsylvania were saying is we

01:52 - 37.027 they were telling the

01:52 - 40.019 government, when you're managing a state forest,

01:52 - 43.599 we don't want you to treat it like a private owner could and set

01:52 - 45.668 and sell all the timber at once.

01:52 - 49.138 We want you to manage it in a way that protects it for future

01:52 - 51.340 resource or future generation, if that.

01:52 - 53.576 If that

01:52 - 55.745 effort by the government

01:52 - 00.473 generates money, whether it's from a fee or a tax,

01:53 - 04.687 it it must be pursuant to our case law.

01:53 - 08.648 It must be dedicated to the environmental purposes

01:53 - 12.161 for the that that the amendment seeks to vindicate.

01:53 - 13.063 Right.

01:53 - 14.764 So that's correct, Your Honor.

01:53 - 18.591 This court has applied those principles to public lands.

01:53 - 22.605 So the natural gas present in my land, I mean, the air, the air floats

01:53 - 23.406 everywhere, right?

01:53 - 27.167 So you can't carve it up into the private air or the public air.

01:53 - 28.545 Sure.

01:53 - 33.006 I'm saying I'm trying to square the interest groups position,

01:53 - 37.853 which they're attempting to apply the PDF line of cases which apply to public lands

01:53 - 41.815 and were predicated on the ownership of those resources.

01:53 - 42.759 It's not true.

01:53 - 45.694 I mean, it's not the Commonwealth doesn't own anything.

01:53 - 50.499 The people, the people own all of the protected

01:53 - 54.194 resources listed in article one, section 27.

01:53 - 56.605 It's not the Commonwealth.

01:53 - 57.574 That's correct, Your Honor.

01:53 - 00.376 I think if you look up the definition of Commonwealth, it is the people.

01:54 - 01.977 Well, I don't I don't think that's true.

01:54 - 05.104 I think I think article one, section 27,

01:54 - 09.885 preserves the rights for current and future

01:54 - 14.547 generations of Pennsylvanians, not the Commonwealth of Pennsylvania.

01:54 - 17.226 The Commonwealth is the trustee. The Commonwealth is the trustee.

01:54 - 18.128 So are we.

01:54 - 22.422 So are we always the, the, Department of Environmental Resources?

01:54 - 25.835 And this court has also said in those same cases

01:54 - 30.739 that private trust principles have to be applied interpreting

01:54 - 33.843 this public trust, your, your, your your point that you're

01:54 - 37.446 trying to argue is that you're trying to suggest there's no public natural

01:54 - 42.384 because the article one, section 27 talks about public natural resources, correct?

01:54 - 44.553 It doesn't talk about private natural resources.

01:54 - 47.580 It doesn't say all natural resources under the earth in Pennsylvania

01:54 - 48.692 are within the trust.

01:54 - 50.092 That's your point. Correct.

01:54 - 52.294 And I'm again, not that doesn't answer justice.

01:54 - 56.723 Next point, which is what about air because we don't own nobody.

01:54 - 57.923 No one

01:54 - 59.568 owns the air.

01:54 - 02.571 There's no I guess unless you're traveling, you have some air rights.

01:55 - 04.607 But what about the air? Right.

01:55 - 09.545 If a private company causes the air to be polluted,

01:55 - 13.716 the air is then part of, you know, our public life.

01:55 - 14.317 It's there.

01:55 - 15.784 It's part of Pennsylvania.

01:55 - 18.187 Yeah. So a couple of points.

01:55 - 22.791 If air cannot be owned, our our point is under the PDF line of cases,

01:55 - 29.365 then it can't be a public trust resource that can be sold in exchange for money.

01:55 - 32.101 That then can be put back into the corpus of the trust.

01:55 - 34.904 It's not a public trust resource.

01:55 - 38.398 If it cannot be put into the trust in the first place that we have.

01:55 - 39.675 I mean, there's for many,

01:55 - 43.812 many years there's been technology which measures pollutants.

01:55 - 47.840 And I mean, that's been going on for, what, 50 years or more?

01:55 - 51.811 I mean, there's measurements that are taken of emissions.

01:55 - 54.456 Certainly we can

01:55 - 57.850 measure what leaves a, the smokestack, the,

01:55 - 02.355 the interest groups position is that we are selling the air.

01:56 - 07.670 And that's very different than monitoring and regulating and restricting

01:56 - 08.904 and pollution credits. Right.

01:56 - 11.373 This is like nuisance costs, right?

01:56 - 16.745 I agree, I agree that Reggie is selling the right

01:56 - 20.015 to emit CO2, which is very different than it's selling.

01:56 - 21.684 It's selling access to our air.

01:56 - 23.852 It's like selling access to underground gas.

01:56 - 26.879 It's selling access to the air.

01:56 - 27.457 Sure.

01:56 - 31.694 And if setting aside the public versus private distinction, which I can go back

01:56 - 36.622 to even under section 27, in the PDF cases,

01:56 - 39.835 Reggie is not consistent with the requirement

01:56 - 44.030 that the all of the proceeds come back to the corpus of the trust.

01:56 - 47.776 And I want to explain why, even though the language says the

01:56 - 53.172 the funds that Pennsylvania receives has to go into the special fund,

01:56 - 58.020 Pennsylvania, isn't it might not get all of the proceeds

01:56 - 02.749 from the sale of the air, the right to admit the CO2 in Pennsylvania.

01:57 - 07.387 That's because Pennsylvania covered sources if they wanted to,

01:57 - 10.656 could buy up theoretically, all of the allowances,

01:57 - 14.227 available in the entire Reggie footprint.

01:57 - 16.271 And who would get some of those proceeds?

01:57 - 21.010 Vermont, Maine, Massachusetts, New York, the other states

01:57 - 24.037 who are participating in Reggie would get their share of the proceeds.

01:57 - 27.073 That's not going back into the corpus of the trust for Pennsylvanians.

01:57 - 29.618 So it's not consistent with section 27.

01:57 - 33.012 Even if you even if you set aside the other flaws in the analogy.

01:57 - 36.225 But again, I'm not saying air

01:57 - 40.262 is not a natural resource that can be protected and it is protected.

01:57 - 43.689 The General Assembly takes that obligation very seriously

01:57 - 46.702 pursuant to its police power.

01:57 - 48.303 So are you suggesting, Mr.

01:57 - 53.633 Corey, that Reggie violates article one, section 27,

01:57 - 57.503 because it monetizes, the air in Pennsylvania

01:57 - 03.519 and sells it on a marketplace where the proceeds are not guaranteed to go to.

01:58 - 04.620 There's no tracking.

01:58 - 07.489 They're not guaranteed to go only to Pennsylvania. Correct.

01:58 - 10.650 Now, that would be assuming you set aside the other constitutional issues.

01:58 - 11.927 Understood. Fide. Right.

01:58 - 15.564 But if we got that far, it would violate section 27 for that reason.

01:58 - 18.901 Yes, yes, Your Honor, so so the moneys that go into the Clean.

01:58 - 22.829 Air Act, the Clean Air Fund accepts monies from all 11 participating Reggie states.

01:58 - 26.008 Was it only administered under Pennsylvania through pence?

01:58 - 28.610 The sale of Pennsylvania allowances.

01:58 - 31.213 So it would depend on who's purchasing the allowances.

01:58 - 36.452 Your honor, there might be times when Pennsylvania sources buy fewer allowances.

01:58 - 39.121 Now, Pennsylvania's would be the largest participant in Reggie.

01:58 - 42.091 I guess what I'm asking is, does Pennsylvania have its own clean air fund?

01:58 - 43.258 And new Jersey has its own

01:58 - 47.196 clean air fund in New Hampshire, Vermont, all the participating states do.

01:58 - 50.823 They have their own funds that only certain moneys go into or delegated to?

01:58 - 55.027 Or is it just one big clean air fund and everybody gets to take pieces of it?

01:58 - 58.240 So I can't speak to how every state

01:58 - 01.043 has structured the statutes that authorize Reggie.

01:59 - 03.979 So I don't know exactly how they but those statutes dictate

01:59 - 05.581 how the money will be spent.

01:59 - 08.841 Pennsylvania has a clean air fund in Pennsylvania.

01:59 - 12.287 And the proceeds that,

01:59 - 16.358 would be received after an auction under the statute.

01:59 - 17.260 Under the regulation.

01:59 - 19.695 I'm sorry, I would go to that clean air fund.

01:59 - 24.166 But what I'm saying is you can't you don't know if that money, is coming

01:59 - 25.868 from the degradation of Pennsylvania's

01:59 - 29.462 air or Vermont's Air or Massachusetts Air Council.

01:59 - 32.765 The Reggie Regulation has two aspects to it.

01:59 - 36.536 One is when we've been focusing on the interstate aspect of it.

01:59 - 40.640 But but that's an opt that that's an option if if

01:59 - 42.252 if the state

01:59 - 45.278 decided instead to conduct its own auction.

01:59 - 49.949 So the proceeds would be clearly connected to the allowances that Pennsylvania,

01:59 - 54.763 gave and said that the only people that can participate

01:59 - 58.600 in the Pennsylvania option auction are those who emit CO2.

01:59 - 01.627 These are the plants that would be subject to the regulation.

02:00 - 05.541 Does that address your issue about the money not solely

02:00 - 08.568 being going into the corpus of the trust?

02:00 - 11.380 I think it would potentially solve that issue,

02:00 - 14.216 but you would have other issues you're on. Of course. Of course.

02:00 - 16.018 So so it's the interstate aspect,

02:00 - 19.955 the co-mingling that you say violates article one, section 27.

02:00 - 20.857 Correct? Correct.

02:00 - 24.083 And I just want to point out one of the issues that would arise is that

02:00 - 27.887 it was no longer a control measure, because if you can still

02:00 - 31.333 you would still be able to trade your allowances with other states.

02:00 - 35.370 So the limit, whatever Pennsylvania's limit is not really a cap.

02:00 - 36.371 It's not really well.

02:00 - 38.707 But if you limited it to Pennsylvania and said there's only a

02:00 - 40.943 I mean, you know, you limited it to Pennsylvania,

02:00 - 42.878 then you basically have a bunch of Pennsylvania plants

02:00 - 46.272 competing against each other for carbon emission allowances.

02:00 - 49.484 Well, I believe the way the regulation reads, Your Honor,

02:00 - 53.346 is that the the allowances would still be tradable with other states.

02:00 - 54.257 Well, I'm just what?

02:00 - 55.791 I don't want a blue line of regulation.

02:00 - 59.785 But if I'm trying to think about a regulation that might pass

02:01 - 03.923 article one, section 27 muster, it would have to be structured in a way

02:01 - 07.393 that ties it directly to the corpus of Pennsylvania,

02:01 - 10.896 and the proceeds and limits it to that, that that would be how you would have

02:01 - 15.344 if all of those things, then it would not violate section 27

02:01 - 16.645 for the reason I just discussed.

02:01 - 20.206 Again, assuming you can apply the public trust principles that have been espoused

02:01 - 24.210 in this court's precedent to private activity on private land.

02:01 - 26.321 Again, I want to go back to that quickly.

02:01 - 29.882 We have a test for when an environmental regulation,

02:01 - 34.620 is an overreach and violates private activity on private land.

02:01 - 37.890 The police power restricts activity on private land.

02:01 - 42.428 It doesn't allow it in exchange for a, for a charge.

02:01 - 45.765 And by introducing checks, does.

02:01 - 47.543 Sure it does.

02:01 - 48.877 My son's building a signs

02:01 - 53.315 for his Eagle Scout project, and he has to to get the permission to do it.

02:01 - 55.917 He has to go pay a fee.

02:01 - 00.980 So. Well, I would actually, to, to be able to be able to put these signs up

02:02 - 04.960 so I would I would disagree a bit, Justice Robson

02:02 - 07.362 and that is that it's not really permission

02:02 - 10.999 when you go to get a permit for something, it's a confirmation

02:02 - 14.727 that you are in compliance with existing requirements that have been properly

02:02 - 19.432 enacted by the General Assembly and then promulgated by an administrative agency.

02:02 - 23.402 You're not going to ask to someone at an administrative agency.

02:02 - 25.113 How do you feel about this today?

02:02 - 27.582 If I pay you this money, will you let me do it?

02:02 - 30.185 That's not how that works. It's it's a permit.

02:02 - 35.781 Is a confirmation that you already are complying with those, those requirements.

02:02 - 38.694 And that's a valid exercise of the police power.

02:02 - 42.388 We also know what those requirements are in advance,

02:02 - 45.434 which is why these restrictions that we put on

02:02 - 48.503 our fellow citizens have to go through the General Assembly

02:02 - 53.099 and they have to be promulgated, through the proper process with,

02:02 - 57.103 in the regulatory sphere,

02:02 - 00.183 So I've covered

02:03 - 04.410 that it's not applicable that air is not a public trust asset,

02:03 - 08.214 and that the rule making is inconsistent with section 27.

02:03 - 13.462 I want to focus again on this police power question again, and what the discussion

02:03 - 17.232 has focused on a bit today already is that maybe it's a tax, maybe it's not.

02:03 - 19.034 Maybe it's something else.

02:03 - 22.561 DEP has been delegated the police power.

02:03 - 26.132 They can enact a fee pursuant to the police power.

02:03 - 29.402 Reggie is not a valid exercise of the police power.

02:03 - 32.814 The volume of the money is absolutely an important consideration.

02:03 - 34.916 But it is not the only consideration.

02:03 - 37.753 And that's what we can pull from the national biscuit test.

02:03 - 41.113 Why is the amount of money a valid consideration?

02:03 - 44.159 Why is the amount of money a valid consideration?

02:03 - 49.288 If we would cost $20 billion to, you know, clean, clean,

02:03 - 52.892 provide clean air in Pennsylvania to eliminate pollution?

02:03 - 55.003 What why is the amount an issue?

02:03 - 57.873 The test is not, What?

02:03 - 58.374 How big?

02:03 - 01.243 Let's find a really big problem and then find a way to pay for it.

02:04 - 04.079 They found a really big problem. The legislature found it.

02:04 - 05.080 Really big problem.

02:04 - 08.574 They said to eliminate pollution. So

02:04 - 11.052 what?

02:04 - 13.221 So what if it's $20 billion?

02:04 - 17.450 So the the legislature provided specific ways that the

02:04 - 21.029 that these entities could be regulated and it doesn't fall into to one of those.

02:04 - 25.734 But so it doesn't fall into you saying this doesn't fall into section five.

02:04 - 28.737 They the specifics

02:04 - 31.764 of what can be regulated.

02:04 - 35.844 It's it's not a control measure in in the way that that has been interpreted

02:04 - 37.012 and applied historically.

02:04 - 41.450 But in terms of the volume, the volume is relative to the cost

02:04 - 46.111 of administering and overseeing the entity, paying it.

02:04 - 50.058 It's not to solve the big problem that's been caused

02:04 - 54.420 by decades, centuries of activity by many, many, many actors.

02:04 - 57.799 The again, this gets back to what is the police power.

02:04 - 01.069 The police power is is what is reasonably necessary

02:05 - 04.096 with regard to that entity or that group of entities.

02:05 - 07.266 And what is the cost of administering that program?

02:05 - 10.078 What is typically done with an exercise of the police

02:05 - 13.215 power and a valid fee is we find an entity.

02:05 - 13.449 Yeah.

02:05 - 16.218 We want to make sure that the air is not being degraded too much.

02:05 - 20.255 What is a reasonable restriction on the emissions

02:05 - 22.858 to make sure the air stays clean?

02:05 - 25.885 Then we need to term it and we set that level.

02:05 - 31.123 Then we determine what is the cost of administering that restriction.

02:05 - 34.236 We don't extract funds from people

02:05 - 37.263 to then spend it how we want.

02:05 - 40.866 Unless you're the General Assembly for taxes, which is that's what a taxes

02:05 - 44.346 then just to be delegated to DEP.

02:05 - 45.947 DEP does not have that authority.

02:05 - 48.850 So the test, the volume, you might have a big problem

02:05 - 51.186 and you might need a lot of resources to fix it.

02:05 - 54.055 But that's the policy discussion for the General Assembly.

02:05 - 57.659 It's not being you're not reimbursing, the government

02:05 - 01.954 for the cost of administering and regulating, that entity.

02:06 - 05.033 But there are three other prongs

02:06 - 09.094 to the national biscuit test that I would like to point out.

02:06 - 12.998 And they all center around DPS, juristic ation.

02:06 - 17.870 DEP doesn't have jurisdiction over entities in these other states,

02:06 - 22.007 and they, they cannot

02:06 - 25.644 supervise and regulate those entities.

02:06 - 28.123 It's also not a condition.

02:06 - 30.792 The entities that are paying those for those allowances,

02:06 - 34.186 it's not a condition upon which the they are permitted to transact their business.

02:06 - 37.432 Their business DEP doesn't have jurisdiction

02:06 - 40.569 over these, if anything, beyond Pennsylvania.

02:06 - 40.803 Yeah.

02:06 - 44.706 And they can't, disguise Reggie as an exercise of the police power

02:06 - 47.700 under that, rationale.

02:06 - 56.442 One, final point again on.

02:06 - 59.654 Something that's been discussed here is whether or not

02:06 - 02.681 the legislature did authorize,

02:07 - 04.693 this rule making.

02:07 - 07.920 And from the General Assembly's perspective, it is not appropriate

02:07 - 13.459 to use section 27 to inform the statutory interpretation or find authority.

02:07 - 14.803 And I believe,

02:07 - 18.564 miss O'Neill actually conceded this point, that the General Assembly

02:07 - 22.768 still has to authorize any, any restriction that is imposed.

02:07 - 27.416 All right.

02:07 - 31.920 It was also stated that the purpose is to

02:07 - 36.157 of the regulation is to, reduce CO2.

02:07 - 41.353 I just want to draw the court's attention to, the rule making record in which DEP

02:07 - 46.492 specifically said it, that the purpose is to signal entry and exit of generation.

02:07 - 50.796 So if we're if the purpose is just to cap and, and,

02:07 - 53.842 regulate CO2, that's one thing.

02:07 - 55.310 If the purpose is,

02:07 - 59.481 as was alluded to earlier, to change the entire dynamic

02:07 - 01.316 of our electric generation system,

02:08 - 04.519 that's absolutely a policy decision that must be made in the General Assembly.

02:08 - 07.546 That was not made here.

02:08 - 13.496 And with regard

02:08 - 17.790 to the agreement question, the statute,

02:08 - 21.336 the Air Pollution Control Act does require,

02:08 - 24.363 any interstate agreement

02:08 - 28.367 or compact to be submitted back to the General Assembly for approval.

02:08 - 31.913 So I just want to point out it doesn't have to be a full compact to get there.

02:08 - 33.214 It's compact or agreement.

02:08 - 35.984 I think it's disingenuous to argue that this is not an agreement

02:08 - 40.055 with other states, but the only agreement aspect of it is if Pennsylvania chooses

02:08 - 43.315 to go into to not not conduct its own auction.

02:08 - 48.029 But again, you lose the actual cap because you need the other states

02:08 - 51.824 to enforce their restrictions in order for yours to be effective.

02:08 - 57.763 Otherwise, the the Pennsylvania, could just simply purchase

02:08 - 02.101 as many allowances as they want from other states to comply with Pennsylvania's.

02:09 - 04.512 Well, again, I mean, well,

02:09 - 04.914 you're right,

02:09 - 07.916 there's certain things that have to follow along with the interstate aspect of it.

02:09 - 11.009 But I would say if you carve out all the interstate aspect of it

02:09 - 14.022 and you just have a these are Pennsylvania

02:09 - 17.292 allowances, all you can do is purchase Pennsylvania allowances.

02:09 - 20.385 Maybe you can sell them between Pennsylvania emitting companies.

02:09 - 22.530 We're going to do the auction in Pennsylvania.

02:09 - 24.766 We're going to get everything from the auction in Pennsylvania.

02:09 - 27.059 Just kick away everything else. Yeah.

02:09 - 30.271 That wouldn't be a problem.

02:09 - 32.407 So I would say

02:09 - 34.542 if you

02:09 - 36.444 assuming all of that, yes, I agree.

02:09 - 39.047 Okay. The agreement has been entered.

02:09 - 40.749 Just because they can withdraw from the agreement

02:09 - 43.118 doesn't mean they're not in it in the first place.

02:09 - 47.079 And if there's no other questions, I can I can, conclude things here

02:09 - 49.257 for sure.

02:09 - 53.252 The Commonwealth court's opinion was clear, it was concise, and it was correct.

02:09 - 57.398 The read your rule making is not a valid fee pursuant to the police power

02:09 - 00.468 delegated by the General Assembly to our position.

02:10 - 04.496 The regio rule making imposes a tax, and only the legislature can impose a tax.

02:10 - 06.941 The interest groups have had an opportunity

02:10 - 09.968 to present their case, and it does not change the outcome.

02:10 - 13.114 One of the amicus briefs in this case,

02:10 - 17.185 included a topical quote from former Chief Justice of the U.S.

02:10 - 18.787 Supreme Court, William Howard Taft.

02:10 - 20.855 And I'll paraphrase it here,

02:10 - 25.050 no matter how well intentioned, the ends cannot justify the means

02:10 - 29.188 where the means will break down recognized constitutional standards

02:10 - 32.825 that are fundamental to our representative system of self-government,

02:10 - 36.171 we ask the court to affirm the Commonwealth,

02:10 - 38.406 the Commonwealth Court's decision in this matter.

02:10 - 39.074 Thank you, Mr.

02:10 - 40.675 Curry, and to all counsel.

02:10 - 42.877 That was exceedingly well argued.

02:10 - 45.079 And, we'll take it under advisement.

02:10 - 46.171 Thank you, thank you.

02:10 - 48.150 The next case

02:10 - 51.176 up for argument is Commonwealth v Arnot.

02:10 - 54.055 This is an appeal from the Superior Court arising

02:10 - 57.115 from a grant of relief under the Post-Conviction Relief Act,

02:10 - 00.686 relating to a case that originated in the York County Court of Common Pleas.

02:11 - 04.456 This appeals filed by the York County District Attorney's Office.

02:11 - 06.935 The appellee is Robert Arnett.

02:11 - 10.338 The case arises out of defendant's charges for aggravated indecent

02:11 - 14.466 assault, sexual assault, indecent assault, and corruption of minors.

02:11 - 18.937 Defendant entered into a guilty plea to all of the above charges in 2004.

02:11 - 20.648 Defendant was assessed

02:11 - 23.809 and found not to meet the criteria for a sexually violent predator.

02:11 - 27.322 Since defendant pled to aggravated indecent assault,

02:11 - 30.158 he was subject to a lifetime registration.

02:11 - 32.660 In 2004, the York County Court of Common Pleas

02:11 - 35.754 sentenced defendant to a total of 5 to 10 years incarceration.

02:11 - 38.032 Following a 2022

02:11 - 41.493 decision by the Pennsylvania Supreme Court and Commonwealth v Larcombe.

02:11 - 44.839 Defendant filed a pro se PCR a petition

02:11 - 47.866 to lift his registration requirements as a sexual offender.

02:11 - 51.403 Relief was granted at the trial court based upon defendant's argument,

02:11 - 55.507 finding that the registration requirements created a rebuttable presumption

02:11 - 58.519 that defendant was a dangerous community

02:11 - 01.546 violating defendant's fundamental right to reputation.

02:12 - 05.560 The York County District Attorney's Office argues on appeal that defendant waived

02:12 - 09.087 his claim that registration requirements violated his right to reputation,

02:12 - 13.158 as he failed to present any scientific evidence at his hearing as required.

02:12 - 16.938 Second, the York County District Attorney's Office argues

02:12 - 20.942 that the registration requirements target a class of offenses and do not impose

02:12 - 24.102 an rebuttable presumption on any particular individual.

02:12 - 28.383 Finally, it's argued that the registration requirements also establish

02:12 - 32.611 a mechanism whereby, even if offenders subject to a lifetime registration

02:12 - 36.515 may petition for relief, thus restoring their reputation.

02:12 - 38.227 Appellee Mr.

02:12 - 41.329 Arnett argues that because the reporting, notification and counseling

02:12 - 44.489 requirements of the Registration Act are so wide ranging

02:12 - 48.694 as to result in ostracization, it infringes on his rights, reputation.

02:12 - 52.840 Appellee also argues the Commonwealth waived any challenge to the failure

02:12 - 55.901 to present scientific evidence regarding likelihood of re offense

02:12 - 57.779 by not raising it.

02:12 - 01.206 Let's watch and listen to the argument in Commonwealth v Arnett.

02:13 - 03.819 Thank you, Your Honor.

02:13 - 06.521 Good afternoon, Chief Justice Todd and justices

02:13 - 08.623 of the Pennsylvania Supreme Court.

02:13 - 10.291 My name is Scott Carlson.

02:13 - 12.593 I'm from the York County District Attorney's office,

02:13 - 14.228 and I represent the Commonwealth.

02:13 - 16.431 The appellant in this case.

02:13 - 19.458 As this court noted, there are two issues

02:13 - 23.071 before it requested by this court

02:13 - 26.098 to be briefed by the Commonwealth and by defendant.

02:13 - 30.268 The first issue, which, strictly speaking, contains two sub issues,

02:13 - 31.746 is whether or not the defendant

02:13 - 35.440 can bring this constitutional challenge under the Post-Conviction Relief Act,

02:13 - 41.322 and, if not, whether it can be brought under some other common law remedy

02:13 - 44.349 and whether the trial court properly had jurisdiction to rule on it.

02:13 - 48.253 In this case, the Commonwealth Attorney general

02:13 - 51.490 and defendant, I believe, are in agreement.

02:13 - 54.702 Strictly speaking, the Post-Conviction Relief Act

02:13 - 58.397 is not the proper vehicle for bringing a claim like this.

02:13 - 00.642 As Your Honor

02:14 - 04.236 noted, the defendant finished serving his sentence long ago.

02:14 - 08.349 And one of the requirements of the Post-Conviction Relief Act is that

02:14 - 13.745 the defendant is currently serving a sentence of incarceration or probation.

02:14 - 18.126 The Post-Conviction Relief Act also statutorily limits

02:14 - 21.253 the kind of challenges that a defendant can bring,

02:14 - 25.390 and specifically collateral consequences.

02:14 - 29.370 Which sex offender registration has been ruled by Pennsylvania courts

02:14 - 32.397 to be a collateral consequence is not included

02:14 - 35.534 in the in the Post-Conviction Relief Act.

02:14 - 39.704 In prior cases, however, such as Commonwealth versus Larcombe,

02:14 - 43.842 this court ruled that the PCA is not the sole procedural mechanism

02:14 - 47.646 for bringing sauna constitutional claims.

02:14 - 52.717 It did not, however, rule on what is the proper procedure, but allowed

02:14 - 56.254 the claim to be brought under the Post-Conviction Relief Act,

02:14 - 01.827 as other courts have done with other constitutional claims related to sauna.

02:15 - 04.639 As I noted

02:15 - 09.243 in their briefs, both the Commonwealth and the defense, as well as the amicus

02:15 - 12.404 brief on behalf of the Attorney General's office, have noted

02:15 - 14.649 that the Post-Conviction Relief Act

02:15 - 18.143 is not the proper venue to bring a claim such as this.

02:15 - 21.713 The only substantial disagreement is what

02:15 - 25.626 remedy there is for a defendant in defendant's

02:15 - 29.688 position who has finished serving his sentence quite some time ago,

02:15 - 32.891 but who nevertheless wishes to challenge

02:15 - 35.470 the constitutionality of the statute.

02:15 - 39.264 The hard thing here is that he cannot challenge it on direct appeal,

02:15 - 42.910 because he is not appealing from a criminal conviction,

02:15 - 45.913 such as failure to register.

02:15 - 50.218 The defendant brought his petition both under the Post-Conviction Relief Act

02:15 - 55.881 as well as a petition for ha be as corpus, which is also the posture of lakum.

02:15 - 57.593 The Commonwealth

02:15 - 00.895 believes this technically a ha be as corpus petition

02:16 - 04.656 is also not the correct vehicle for bringing a claim like this,

02:16 - 08.527 because it requires a sentence of incarceration.

02:16 - 12.273 The Commonwealth believes that a petition for coram

02:16 - 12.708 nobis

02:16 - 16.577 is likely the most appropriate procedure, whereby a defendant can challenge a claim

02:16 - 20.405 where he is not serving a sentence, but is required to register because

02:16 - 24.176 a registration requirement that did not exist

02:16 - 29.457 while defendant was serving his sentence or when he was sentenced, constitutes

02:16 - 32.484 a new fact that could have changed the outcome of the case.

02:16 - 36.321 It also may be possible to bring

02:16 - 40.759 this petition or a remedy like this

02:16 - 45.239 to the Commonwealth Court, since registration is handled

02:16 - 48.266 and administered by the Pennsylvania State Police.

02:16 - 51.078 The defendant has raised concerns

02:16 - 54.139 that are cogent about whether or not this is appropriate given.

02:16 - 59.420 Generally, the trial court is the one who is sentenced to defendant to register

02:16 - 03.048 and has knowledge of individualized facts that might be relevant to challenge

02:17 - 05.226 registration.

02:17 - 09.754 The Commonwealth does not believe that there is a sole mechanism at this point

02:17 - 14.902 to bring a challenge to Sorna after a defendant has finished

02:17 - 18.263 serving his sentence, but that court novice in the Commonwealth Court

02:17 - 21.466 might be proper vehicles in which to bring such a challenge.

02:17 - 24.946 The Commonwealth does, however, believe

02:17 - 28.373 that the trial court had jurisdiction to rule on this petition

02:17 - 33.812 because at the time the state of the law was in flux, especially given

02:17 - 37.458 that subchapter I was still being

02:17 - 41.028 litigated, and subchapter.

02:17 - 44.956 H was also still being litigated as potentially punitive sentences.

02:17 - 46.624 And if.

02:17 - 50.638 Sorna were to have been found to be a punitive sentence

02:17 - 54.899 and not merely a collateral consequences of a conviction, then

02:17 - 58.803 a post-conviction relief Act challenge might have been appropriate.

02:17 - 02.907 It's clear that the defendant did attempt to preserve his rights,

02:18 - 06.053 and given that there was no sole procedural

02:18 - 09.247 mechanism in place by any court to bring such a challenge.

02:18 - 12.560 The Commonwealth is not arguing that the trial court

02:18 - 15.587 improperly ruled or lacked jurisdiction.

02:18 - 20.101 The next issue that your honors wish the Commonwealth and defense to discuss

02:18 - 24.305 is whether or not subchapter IE violates defendant's due process rights

02:18 - 27.332 because of an unconstitutional rebuttable presumption.

02:18 - 31.145 The Commonwealth believes that coming to counsel is justice on here

02:18 - 32.246 before you move on.

02:18 - 36.107 I believe that you said that, it was, your

02:18 - 40.045 your position that potentially a quorum nobis,

02:18 - 44.015 action in the Commonwealth Court would be appropriate.

02:18 - 47.962 I may have misspoken or miscommunicated what I meant to say a quorum.

02:18 - 51.499 Novus action would properly be brought in the trial court, right?

02:18 - 55.369 The Commonwealth court is more akin to bringing

02:18 - 58.706 an action against PennDOT, for example, for a licensing issue.

02:18 - 02.977 The issue defendant has pointed out is whether or not PennDOT is analogous,

02:19 - 06.347 for example, to the Pennsylvania State Police in administering,

02:19 - 09.574 the sex offender registry and handling

02:19 - 12.553 registration by defendants.

02:19 - 14.145 As I said, the Commonwealth is.

02:19 - 16.657 I don't believe that there is

02:19 - 20.461 one sole procedural mechanism, given the way sort of works is an unusual

02:19 - 23.922 statute and applies to a lot of different defendants in a lot of postures.

02:19 - 27.425 But as I said, I think that the Quorum Novus action is probably

02:19 - 30.938 the most appropriate, given

02:19 - 34.041 that it is a common law remedy that falls outside of the PCA.

02:19 - 36.043 A and I'm sorry.

02:19 - 37.611 One other question.

02:19 - 40.672 It or not, didn't,

02:19 - 44.809 bring an action against the Pennsylvania State Police.

02:19 - 49.523 And there's been some argument in this case that, the Commonwealth.

02:19 - 52.550 Court, via petition for review,

02:19 - 55.987 is the appropriate forum because of,

02:19 - 59.767 the state police, authority

02:19 - 03.595 to, enforce the sword to registration.

02:20 - 06.741 Do you have a view as to whether or not the Pennsylvania State.

02:20 - 11.503 Police are indispensable parties in these actions?

02:20 - 21.389 I mean, they're indispensable in the sense that they are

02:20 - 25.383 the enforcement mechanism, but they're not the sentencing mechanism.

02:20 - 29.263 And typically sort of challenges have not at this point

02:20 - 32.290 been brought against the state police generally.

02:20 - 35.894 Counsel, this is justice problem.

02:20 - 38.672 I want to probe you on your understanding

02:20 - 41.699 of the Commonwealth court's original exclusive jurisdiction.

02:20 - 46.414 You seem to indicate that there has to be that that that jurisdiction

02:20 - 50.108 only extends to a state agency or an action against a state agency.

02:20 - 54.245 But the statute says the Commonwealth Court shall have original jurisdiction

02:20 - 59.660 of any or of all civil actions or proceedings against the Commonwealth

02:20 - 02.797 government, including any officer thereof,

02:21 - 05.990 acting in his or her official capacity.

02:21 - 09.594 Wasn't this an action against the Commonwealth Government?

02:21 - 12.142 This petition that was filed in this case?

02:21 - 15.743 It was, Your Honor, and that's,

02:21 - 18.770 I believe, the primary argument that the attorney general raised.

02:21 - 21.973 And we don't necessarily disagree with that argument.

02:21 - 25.519 We're not certain it's the correct argument or that it's

02:21 - 30.424 the exclusive of, avenue for a defendant to raise a challenge like this,

02:21 - 33.451 which is what the Attorney General's office is arguing,

02:21 - 35.763 given, counsel is. Pardon me.

02:21 - 37.364 This is justice work.

02:21 - 42.160 Given what you've said in response to my colleagues and your prior argument,

02:21 - 47.608 why why shouldn't the mechanism be a mandamus or declaratory

02:21 - 52.036 judgment action against the state police in the Commonwealth Court?

02:21 - 55.907 Why wouldn't that be the best mechanism or the most appropriate mechanism here?

02:21 - 00.254 I don't know that it wouldn't be the most appropriate mechanism, Your Honor.

02:22 - 03.281 I think quorum notice and the

02:22 - 06.484 and the kind of writ you're describing might be equally appropriate.

02:22 - 10.431 My primary argument, given the questions that you asked, is

02:22 - 14.259 that the PCA is not statutorily the appropriate mechanism

02:22 - 16.003 and that ha be as would not really work

02:22 - 19.797 as a mechanism because the defendants, unless the defendant is incarcerated.

02:22 - 21.442 Thank you.

02:22 - 22.977 Counsel. Justice Robson again.

02:22 - 27.214 But the problem with saying it could be Commonwealth court or quorum

02:22 - 30.217 nobis nobis is the Commonwealth.

02:22 - 33.244 Court's jurisdiction is statutory and exclusive.

02:22 - 36.257 And if you say the Commonwealth Court is an appropriate mechanism

02:22 - 39.093 other than the exception written for ha be as corpus,

02:22 - 41.395 there is no other exception to the Commonwealth courts

02:22 - 43.497 exclusive jurisdiction in this matter.

02:22 - 46.967 So if you're that's where I'm a little probing your argument.

02:22 - 51.138 If you concede that the Commonwealth Court is the appropriate venue

02:22 - 54.999 or appropriate jurisdiction of this matter, then that excludes all others,

02:22 - 58.012 except for ha be as corpus, which is the only exception

02:22 - 59.304 in the jurisdictional statute.

02:23 - 09.456 Your honor, I think you may be correct about that.

02:23 - 13.384 And that is, that is why the Commonwealth included that,

02:23 - 16.421 and that's why the attorney general included that as their argument.

02:23 - 19.134 Counsel.

02:23 - 22.870 Justice Donoghue again, why why do you agree

02:23 - 27.041 with the proposition that this was an action against a commonwealth?

02:23 - 30.068 Party?

02:23 - 32.146 Can you repeat the question, your honor?

02:23 - 36.317 I'm not, Why why are you of the view that this was,

02:23 - 40.087 in fact, an action against a Commonwealth

02:23 - 43.114 party?

02:23 - 46.160 Well, Your Honor, because the Commonwealth is,

02:23 - 50.764 the Commonwealth itself has to enforce the registration requirements and the and,

02:23 - 56.327 they're statutorily required pursuant to Sorna itself.

02:23 - 59.530 And so the Commonwealth is the one that is

02:24 - 03.067 directly administering the sex offender registry.

02:24 - 06.914 So there really is no other, entity to challenge.

02:24 - 10.742 You could say it's challenging the Pennsylvania State Police or potential

02:24 - 12.176 the district attorney's office.

02:24 - 15.789 But in either case, I

02:24 - 18.816 think it is challenging the Commonwealth of Pennsylvania as an entity.

02:24 - 20.961 Now, why would that be?

02:24 - 22.229 Why would that be council?

02:24 - 26.133 I mean, I as I view the,

02:24 - 30.528 request for release here, this is, as I read it,

02:24 - 34.241 not a challenge to the enforce ment,

02:24 - 40.014 of the registration requirement, but it's a challenge to the registration

02:24 - 43.041 requirement itself.

02:24 - 52.283 Or am I wrong?

02:24 - 54.194 I said, well, yeah, I'm.

02:24 - 58.632 I'm not sure whether that's a distinction without a difference or not,

02:24 - 01.635 because certainly if you're challenging the registration requirement

02:25 - 04.662 overall, you're challenging the Commonwealth's right to enforce it.

02:25 - 07.641 Well, I guess I guess I phrase the question

02:25 - 11.035 that way because, of your belief,

02:25 - 15.373 that core nobis in the Common Pleas Court

02:25 - 19.687 is the, appropriate form of action.

02:25 - 25.016 And, court in which the matter should be, should proceed,

02:25 - 29.263 because what would be happening in the coram nobis requirement

02:25 - 32.833 is a challenge to his classification

02:25 - 36.961 under the newly designated, requirement.

02:25 - 41.675 Yes. I suppose it just

02:25 - 44.702 depends on how the challenge is raised.

02:25 - 47.915 And whether it is a challenge to purely

02:25 - 50.942 the enforcement against the defendant or the,

02:25 - 55.146 or the constitutionality, which is why,

02:25 - 57.891 the Commonwealth and the attorney general raised both arguments,

02:25 - 01.486 because these challenges exist in a kind of gray area,

02:26 - 04.531 where it's not always clear exactly what they are.

02:26 - 06.500 And that, I think, is why this court in the past

02:26 - 09.527 has said there isn't a sole procedural mechanism for bringing up.

02:26 - 13.540 And just one other question along those lines

02:26 - 16.534 on, unlike,

02:26 - 22.573 unlike other matters that, are brought in the Commonwealth Court, the DUI,

02:26 - 28.722 conviction followed by a license suspension, in the case in a case

02:26 - 33.417 like this, it's not as though the Commonwealth Court Act.

02:26 - 36.821 Pardon me, the Common Pleas Court actually

02:26 - 40.591 ever loses jurisdiction over this matter.

02:26 - 44.629 I mean, ultimately, there are a lot of different,

02:26 - 46.541 entities and

02:26 - 52.236 agencies that are involved in, the, application of Sorna

02:26 - 56.817 registration, including the Common Pleas Court at the, you know, 25 year period

02:26 - 00.754 when they're tasked with reviewing a recommendation by the board.

02:27 - 03.791 Does that make a difference in terms of,

02:27 - 08.128 whether or not the, Commonwealth Court has,

02:27 - 12.123 exclusive jurisdiction at this stage of a proceeding?

02:27 - 13.300 I think it does, Your Honor.

02:27 - 18.872 And the reason is that the trial court may have more data and may have be

02:27 - 23.835 in a better position to review the defendant's, defendant's record.

02:27 - 27.605 Usually there isn't testimony of any kind that's been taken

02:27 - 28.750 in the Commonwealth Court.

02:27 - 31.776 The Commonwealth Court doesn't oversee, for example, defendants,

02:27 - 34.655 assessment as a sexually violent predator.

02:27 - 37.124 Predator or not, a sexually violent predator.

02:27 - 40.685 Which, again, is why the Commonwealth's position is slightly different

02:27 - 44.431 than the attorney general's, in that we don't necessarily believe,

02:27 - 48.993 until the law is clarified that there is exclusive jurisdiction or

02:27 - 50.805 better to

02:27 - 53.807 say, an exclusive procedural mechanism.

02:27 - 58.102 We are more strongly opinionated about what mechanisms are not appropriate.

02:27 - 01.181 Thank you.

02:28 - 05.185 The final issue that this court asked the Commonwealth

02:28 - 09.981 and defendant to address is the irrevocable presumption issue.

02:28 - 13.093 The Commonwealth, as in his brief, believes that

02:28 - 17.255 this has clearly been decided by Commonwealth versus ciliary in 2024.

02:28 - 20.925 The reason we believe that is because though taw ciliary

02:28 - 24.671 was addressing subchapter H, specifically the findings

02:28 - 28.242 and policy considerations of the legislature

02:28 - 33.037 when it enacted Sorna, as in the statute, are virtually identical.

02:28 - 35.515 The concerns about recidivism were identical.

02:28 - 39.377 The concerns that gave rise to the registration requirement are identical.

02:28 - 44.157 So no analysis, would change the question of here.

02:28 - 46.693 Is that whether or not there was an irrevocable presumption?

02:28 - 50.564 Different members of this court have different opinions on the utility

02:28 - 53.658 of the presumption doctrine, but given to ciliary

02:28 - 57.395 as the current state of the law and given the clear language

02:28 - 00.965 that is nearly identical in subchapter H and subchapter I,

02:29 - 04.845 we believe that there's no reason to analyze subchapter.

02:29 - 08.205 II differently than the way to analyze subchapter H.

02:29 - 10.651 Counsel, this is, justice Mark again.

02:29 - 14.054 Do you do you have a position here?

02:29 - 16.556 Because I think it came after your filing.

02:29 - 19.283 Do you have a position on Appellee's request?

02:29 - 25.365 That, that we remain on so

02:29 - 29.870 he can raise equal protection or substantive due process?

02:29 - 34.198 On the, I think on the rationale that he had no,

02:29 - 37.344 no notice, I guess, that we would reject your rebuttable

02:29 - 40.371 presumption.

02:29 - 44.051 Well, Your Honor, I think that even if defendant

02:29 - 47.087 believed that, he would have come out a different way.

02:29 - 48.722 There was nothing preventing him

02:29 - 52.350 from raising those arguments in addition to your rebuttable presumption.

02:29 - 55.329 There was nothing in the court below that said he couldn't say.

02:29 - 57.230 And in the alternative,

02:29 - 00.033 this violates defendant's equal protection rights or substantive

02:30 - 03.070 due process rights, or is unconstitutional as applied to the defendant.

02:30 - 05.572 So we would argue that that's a simple waiver issue.

02:30 - 07.541 And if defendant wanted to raise that, he could have raised it

02:30 - 10.568 in the court below and brought it to this court in that way.

02:30 - 11.145 Counsel.

02:30 - 13.780 Justice Donohue again, along the same lines,

02:30 - 14.815 do you have a position

02:30 - 19.176 on whether or not the defendant raised and as applied challenge?

02:30 - 20.687 Yes, we do.

02:30 - 22.723 Your honor, we believe it's very clear

02:30 - 25.883 in defendant's original petition for post-conviction Relief act

02:30 - 30.230 petition for ha be as corpus, that he focused exclusively on the issue

02:30 - 33.924 of an irrevocable presumption, affecting his right to reputation.

02:30 - 36.169 We do not believe

02:30 - 39.764 that he offered any testimony as to his particular circumstances

02:30 - 44.969 that would, be related to an as applied constitutional challenge.

02:30 - 48.382 And given the posture of the case, we believe it would have been defendant's

02:30 - 51.952 burden to, offer such testimony,

02:30 - 54.979 not the Commonwealth's burden to show that,

02:30 - 58.158 applying.

02:30 - 00.427 Sorna to this defendant was constitutional.

02:31 - 02.863 In particular.

02:31 - 05.890 Thank you.

02:31 - 06.834 Anything else, Mr.

02:31 - 08.135 Carlson?

02:31 - 10.871 Nothing from the Commonwealth, Your Honor, unless you have more questions.

02:31 - 13.440 I just wanted to ask if you would introduce your coat.

02:31 - 14.841 Oh, yes. I'm very sorry.

02:31 - 18.636 My co-counsel is Ed Weast, also from the York County District Attorney's office.

02:31 - 19.347 Thank you.

02:31 - 20.514 All right. Thank you very much.

02:31 - 23.316 This is my first store argument, and I'm still getting so done. Well.

02:31 - 24.751 Well done. Thank you.

02:31 - 25.453 Thank you.

02:31 - 28.455 Also, Your honor, I'd like to thank you for,

02:31 - 31.258 noting who you are when you ask me questions.

02:31 - 33.593 I think I do recognize your voices, but I was a little bit

02:31 - 35.619 worried about mis naming you. If I addressed it.

02:31 - 38.098 Well, it's happened before.

02:31 - 39.966 Okay. Happen again?

02:31 - 40.568 Thank you.

02:31 - 43.270 Thank you very much.

02:31 - 45.205 Let's hear from, Mr.

02:31 - 48.232 Tambourine.

02:31 - 51.702 Ma'am.

02:32 - 03.156 Please proceed.

02:32 - 04.157 Good afternoon.

02:32 - 05.492 May it please the court?

02:32 - 07.661 My name is Anthony Tamba Reno.

02:32 - 10.363 I'm with the York County Office of Conflict counsel

02:32 - 13.390 and I represent Robert Arnett in this matter.

02:32 - 17.772 Mr. Arnett

02:32 - 21.108 requests that this court affirm New York County Court of Common Pleas order

02:32 - 25.536 granting him relief from lifetime registration under subchapter I of Sorna.

02:32 - 29.216 That order rightly recognized the law's presumption

02:32 - 33.253 of a high recidivism violates his fundamental right to reputation.

02:32 - 34.988 Under Pennsylvania's era.

02:32 - 37.324 Abominable presumption doctrine.

02:32 - 40.351 When a citizen's reputation,

02:32 - 44.364 a right that this court has said our Constitution deems inherent.

02:32 - 49.069 And in the feasible is unjustly harmed by a false statutory label,

02:32 - 51.238 they must have a path to redemption.

02:32 - 55.342 Can you, counsel could you address how that argument survives

02:32 - 57.477 post Torricelli era?

02:32 - 01.539 Well, I would I guess the first way I would say it survives is that Torstar

02:33 - 03.517 didn't address an ad supply challenge,

02:33 - 06.877 and we would argue that we are making an ad supply challenge.

02:33 - 11.115 We were, the trial court specifically noted that the

02:33 - 13.760 the long,

02:33 - 16.787 a long amount of time from his convictions,

02:33 - 21.434 as a basis and the Commonwealth, while I think we acknowledged in the brief

02:33 - 25.863 that the burdens did shift a bit in the hearing and they should not have,

02:33 - 29.709 but the trial court indicated, just given the amount of time,

02:33 - 32.846 that there wasn't really anything that would make a difference.

02:33 - 34.114 And frankly, the Commonwealth

02:33 - 37.508 did kind of concede that no other evidence would need to be presented.

02:33 - 42.155 So under the circumstances, we want view it as an, as a pie challenge

02:33 - 46.259 and we do view it, as, there was sufficient evidence

02:33 - 49.286 presented to the court during argument to demonstrate

02:33 - 52.623 that he was no longer a risk under the a rebuttable presumption.

02:33 - 57.337 So taking it as a, as applied challenging in this case,

02:33 - 58.605 how does it make it any different.

02:33 - 02.399 And then our discussion to receive O'Leary contemplate.

02:34 - 04.133 Well,

02:34 - 06.446 I think it's

02:34 - 08.982 to quote your Honor, I think it's much less of a fool's errand,

02:34 - 14.345 to be analyzing an individual for their particular circumstance

02:34 - 19.059 and what they have done, over time to, let's call

02:34 - 22.086 it, rehabilitate their reputation and seek some redemption.

02:34 - 25.031 To theory, to, of course,

02:34 - 28.092 as you well stated.

02:34 - 31.662 What specifically about this very difficult,

02:34 - 35.942 facial challenge where you were, in essence, you had a battling of experts

02:34 - 38.969 and you were analyzing expert testimony and trying to figure out,

02:34 - 40.614 you know, what was what.

02:34 - 44.241 Under these circumstances, what I can say is that.

02:34 - 50.991 The the presumption remains in place, of course, because this court found

02:34 - 55.085 that the 13% made a difference as far as somebody being higher risk.

02:34 - 00.033 But this court also acknowledged that 10 to 15 years afterwards,

02:35 - 05.195 there is a assistance in the assistance in this type of behavior plummet.

02:35 - 08.108 Well, I mean, if you look at where Mr.

02:35 - 11.135 Arnett is at at this point, he is at least past that point,

02:35 - 15.239 and he should be able to bring a challenge as applied to him,

02:35 - 18.909 which, frankly, in my view, works much better for the er,

02:35 - 21.912 a presumption doctrine to rehabilitate his reputation.

02:35 - 24.991 A defendant

02:35 - 28.018 can put on evidence to demonstrate how they have changed

02:35 - 31.064 where the presumption doesn't apply to them anymore.

02:35 - 33.166 So I just I'm sorry I one more thing.

02:35 - 34.367 Pardon me.

02:35 - 37.394 So are you saying then,

02:35 - 40.907 as applied to him, it becomes punitive.

02:35 - 44.611 Because, you know, I lost that in the torso theory.

02:35 - 46.813 Or are you saying it as applied to him?

02:35 - 49.807 It's a rebuttable presumption.

02:35 - 51.751 I'm sorry.

02:35 - 52.686 Can you repeat that?

02:35 - 53.054 Yeah. You are.

02:35 - 54.154 You're saying you're

02:35 - 57.781 you're making it as applied challenge, which you think survives to our sillier.

02:35 - 01.795 And I'm not clear on whether you're saying

02:36 - 05.789 that as applied to his circumstances, because of this passage of time,

02:36 - 10.227 it somehow becomes punitive when it wasn't in theory.

02:36 - 14.407 Are you saying it somehow becomes a rebuttable presumption

02:36 - 16.376 because of the passage of time in his case?

02:36 - 18.936 Well, I think under subchapter I,

02:36 - 21.915 under subchapter II,

02:36 - 24.684 as I think I argued in the brief, the cohort is different.

02:36 - 28.722 The group of people, you know, it's it's an individual

02:36 - 33.817 who, was convicted and had to register prior to December 20th, 2012.

02:36 - 37.788 So we're now 13 years out from 2012.

02:36 - 40.734 And his offenses were from 2004.

02:36 - 45.329 So I think as far as the presumption applying to him, I think it applies.

02:36 - 49.266 I think based on theory,

02:36 - 54.938 the year about presumption, The

02:36 - 59.419 the high recidivism risk is it's there there's not much I can do about that.

02:36 - 04.114 But I do think that there's an opportunity for people over time to demonstrate,

02:37 - 07.684 as applied to them, that they are no longer that kind of risk.

02:37 - 10.397 And they can do that

02:37 - 13.733 under their reputation by redeeming their reputation.

02:37 - 15.268 And that is a fundamental right.

02:37 - 18.295 So I don't know if that answers your question.

02:37 - 21.107 Counsel, I thought I thought your argument was

02:37 - 25.769 tied to the notion that your client's, reputation,

02:37 - 30.350 was damaged as a result of,

02:37 - 34.044 the operation of the statute. I mean,

02:37 - 38.916 how are you claiming that

02:37 - 42.061 the irresistible presumption

02:37 - 45.398 as applied to him is unconstitutional?

02:37 - 50.270 Or are you claiming that, the lifetime registration

02:37 - 53.897 under his circumstances violates his right to reputation?

02:37 - 57.911 I think it violates his right.

02:37 - 01.538 Right to reputation as applied to him based on the rebuttable presumption.

02:38 - 05.342 Are you arguing a right to reputation damage?

02:38 - 07.554 Is that is that your argument?

02:38 - 09.055 I mean, I, I think it is.

02:38 - 14.017 That's a different argument than than the earbud Bell presumption.

02:38 - 17.397 Falling by the wayside after a number of years.

02:38 - 19.432 I think.

02:38 - 23.060 Why I mean, I think on its face, because of subchapter I's

02:38 - 26.497 the group of people is different when

02:38 - 30.643 when subchapter I was passed,

02:38 - 32.946 these individuals were already

02:38 - 35.882 fairly distant from their convictions.

02:38 - 40.119 And therefore it was it did violate their reputation in this particular case.

02:38 - 43.180 I'm saying it violates my client's reputation as applied to him,

02:38 - 47.551 because he can demonstrate that he has not been a problem for a number of years.

02:38 - 49.362 Did he demonstrate that? Is it?

02:38 - 52.489 Wouldn't that be a requirement in order to preserve this challenge?

02:38 - 55.702 Well, I mean, I guess all I can really say is the trial court thought he did.

02:38 - 59.196 And, you know, I guess that goes to to the idea of remand.

02:38 - 01.975 This court could certainly remand for more evidence.

02:39 - 04.344 And for me, what was what was the what was the evidence

02:39 - 08.681 on which the trial court determined that that what you think

02:39 - 13.086 the trial court determined that he had somehow rehabilitated himself.

02:39 - 14.854 What was the evidence other than the passage of time?

02:39 - 19.149 I mean, I think under these circumstances it was the passage of time. So,

02:39 - 21.662 yeah, I

02:39 - 24.688 so I, I guess the question is, did you present,

02:39 - 30.060 did you present evidence of your client's rehabilitation?

02:39 - 33.397 And the second part to that would be,

02:39 - 37.410 doesn't your client have a statutory can't can't this your client

02:39 - 41.381 take advantage of the statutory out that was an amended

02:39 - 44.408 into the statute?

02:39 - 47.353 To get off the lifetime after 20 years.

02:39 - 47.755 Correct.

02:39 - 51.190 And I mean, based on the transcript, it was mostly argument

02:39 - 52.392 as to the client's point.

02:39 - 53.127 That's not evidence.

02:39 - 55.495 So there's no so there was no evidence presented.

02:39 - 57.597 I mean, other than the evidence that I alleged with

02:39 - 59.866 which apparently the trial court took credit for.

02:39 - 02.869 I mean, it credited the evidence that I provided, which was

02:40 - 05.896 he was convicted in 2004 and

02:40 - 08.474 what about the statutory out?

02:40 - 12.679 Why should we why should we create some sort of out

02:40 - 14.747 when the General Assembly has already created it?

02:40 - 19.152 Well, I mean, I, I mean, I think the out of 25 years is somewhat arbitrary.

02:40 - 22.145 If under theory too, there's an acknowledgment that

02:40 - 25.325 their risk plummets after 10 to 15 years.

02:40 - 26.859 I mean, if we're talking about a fundamental

02:40 - 30.964 right of reputation, then their reputation is being damaged for it.

02:40 - 32.532 Well, 10 to 15 years.

02:40 - 36.293 So you're you're it's denial reputation without due process of law.

02:40 - 38.771 That's what the Constitution guarantees.

02:40 - 41.040 All kinds of things harm reputation.

02:40 - 44.067 Your client, was guilty

02:40 - 47.938 of an act that harmed the reputation.

02:40 - 51.718 So I'm not sure how you can then piggyback off

02:40 - 55.888 of a collateral civil consequence and say my client's reputation has been harmed.

02:40 - 58.391 It was harmed by the criminal conviction

02:40 - 00.893 which your client received due process of law.

02:41 - 01.917 Well,

02:41 - 05.465 it is harmed by the criminal conviction, but it's harmed

02:41 - 08.434 by the registration requirements, which is the issue in this case.

02:41 - 11.571 So the you're the conviction, how could the reputation go for

02:41 - 14.965 how could the reputation of your client go further in the tank by the registration,

02:41 - 18.144 if the if the conviction is a matter of public record?

02:41 - 21.814 Well, the registration requirements and I mean the availability

02:41 - 25.718 of registration information is far more damaging to his reputation

02:41 - 28.745 that did your client have a right that the conviction be forgotten?

02:41 - 30.524 Well, no.

02:41 - 33.192 I mean, I can't say that he has a right to have his conviction be forgotten.

02:41 - 35.528 He was convicted. But as far as registration

02:41 - 38.555 goes and the information that's available to the public,

02:41 - 41.234 I mean, we're talking about whether he's

02:41 - 45.538 being shamed by what Warner requires him

02:41 - 49.332 to release to the public in sort tersely, every close that door.

02:41 - 53.946 I mean, I don't know what survives other than the issue

02:41 - 57.474 of where future claims can go.

02:41 - 02.479 That's why I asked your, your colleague, about the

02:42 - 04.624 mandamus or

02:42 - 07.884 declaratory judgment against PSP in Commonwealth court.

02:42 - 12.131 I just don't see how your argument vs Mr.

02:42 - 14.267 Arnett,

02:42 - 16.135 based on your answers on that, is I, I'm not

02:42 - 19.162 see how it's differentiating itself adequately from Mr.

02:42 - 22.265 Murray's case.

02:42 - 24.011 I mean, only

02:42 - 28.047 that an as applied challenge, I suppose, is is very different

02:42 - 31.074 than the facial challenge that was faced in torso theory.

02:42 - 34.420 I mean, it's it's I mean, it's significantly different

02:42 - 37.356 since it's specific to him. It's specific to what he's done.

02:42 - 41.118 It's specific to what what he has done to rehabilitate his reputation.

02:42 - 43.262 And I would all be required.

02:42 - 45.031 You have to present a record on this.

02:42 - 47.266 Let's assume let's assume that was it the Supreme Court's decision?

02:42 - 49.702 Was it Muhammad, the Superior Court's decision?

02:42 - 50.671 Yes. Correct.

02:42 - 53.730 So let's assume a Muhammad claim survivor's torso area.

02:42 - 58.611 A record is going to have to be completed of what has happened post-conviction.

02:42 - 00.446 With regard to your client, the conviction records

02:43 - 03.983 already a matter of public record, but post-conviction is the kind of record

02:43 - 06.719 you would have to present to to do a claim.

02:43 - 07.954 Right? Correct.

02:43 - 12.191 So why is presenting that in a common in the Commonwealth Court's

02:43 - 16.562 original jurisdiction, any much of an impediment to your client

02:43 - 18.931 assuming that kind of claim survives, then presenting it

02:43 - 22.325 to one of 60 judicial districts in the Commonwealth of Pennsylvania?

02:43 - 25.872 Well, I mean, I think it's best presented in the judicial district

02:43 - 30.176 where he was convicted because that trial court is conceivably still there.

02:43 - 32.278 That judge may still conceivably still be.

02:43 - 33.080 Why does that matter?

02:43 - 35.281 Because the just because

02:43 - 37.817 the conviction is a matter of record, you can't redo anything.

02:43 - 38.951 There.

02:43 - 41.621 Everything in a Muhammad claim is post-conviction.

02:43 - 45.291 What has you know you know, you know, what has the person done

02:43 - 48.351 to rehabilitate themselves, to shed themselves of the stigma?

02:43 - 50.630 That's all post-conviction.

02:43 - 54.500 Why is the Common Pleas Court the best court to have that?

02:43 - 56.402 I can see that if they if the criminal,

02:43 - 58.771 if what happened in the criminal side of things was important.

02:43 - 01.407 But since Leary happened, we've said it's a civil it's

02:44 - 02.699 collateral civil consequence.

02:44 - 06.145 Well, I mean, I suppose, I

02:44 - 09.415 mean, I suppose it's it's as one of the options,

02:44 - 12.218 the trial court is a place to do it, just like the trial court would do.

02:44 - 14.587 The SVP determines it's in the position.

02:44 - 15.955 Well, that happens at sentencing.

02:44 - 18.324 It does happen at sentencing. Statutory jurisdiction.

02:44 - 19.425 Would the trial court have.

02:44 - 21.928 It's not a PCR, a

02:44 - 25.798 well, I would argue just like under Commonwealth witness,

02:44 - 29.836 which was also my case, I raised that as a ha be as issue as well.

02:44 - 32.405 I think ha be as is appropriate here because these are

02:44 - 34.807 these registration requirements are restraints

02:44 - 37.810 that they don't have, as they don't have the body.

02:44 - 40.646 He's out and walking around.

02:44 - 42.148 We don't have the district attorney

02:44 - 45.175 certainly doesn't have the body because the district attorney has no,

02:44 - 50.046 no authority over the, over the, registration at all.

02:44 - 52.024 Well, that means anybody has the body.

02:44 - 53.659 It's the Pennsylvania State Police

02:44 - 55.643 because they're the ones maintaining the register.

02:44 - 58.364 Well,

02:44 - 00.433 I understand what you're saying, but they have the body.

02:45 - 03.402 But we're we use ha be as for more than just

02:45 - 06.429 somebody having the restraint of being in prison.

02:45 - 09.308 We use them for various other reasons as well.

02:45 - 12.335 Even for a civil form of restraint.

02:45 - 16.782 Well, I mean, I,

02:45 - 19.776 I think my argument is, is that this is a significant,

02:45 - 23.122 if we're going to call it a civil form of restraint.

02:45 - 26.816 This is a significant form of restraint which damages his right to reputation.

02:45 - 29.462 But isn't your action against you?

02:45 - 33.123 You agree that your action, if it if it currently exists,

02:45 - 35.701 would be against the PSP?

02:45 - 38.905 Well, I know I don't necessarily agree with that,

02:45 - 41.574 but against the DA's office, they don't vote and pick with you.

02:45 - 45.435 Well, I mean, I think it's a I think it's against the Commonwealth as it stands.

02:45 - 47.346 And I say that because I mean,

02:45 - 50.707 I understand the the rationale of using PennDOT as an example,

02:45 - 54.153 but registration is administered by more than PSP.

02:45 - 58.691 It's sometimes a it is I thought the PSP owns that whole process.

02:45 - 03.954 And certainly our cases have indicated that I and that's I think what the statute

02:46 - 07.700 the whole sort of sort of well, probation

02:46 - 10.836 is often involved in registration at least partially.

02:46 - 14.297 And doc can be involved in registration when people are released.

02:46 - 19.502 So while PSP administers it on a regular basis, I think here,

02:46 - 22.848 really the best place is for the trial court

02:46 - 26.943 because of the type of claim that we've raised where you're

02:46 - 29.322 you're you're jumping to the court you want to be in to.

02:46 - 33.950 You're not discussing who you sued because who you sued

02:46 - 37.787 determines which court has jurisdiction.

02:46 - 41.191 If you sued the Commonwealth government,

02:46 - 44.327 then it belongs in Commonwealth court, unless it's ha be as.

02:46 - 47.707 Well, at the time, I mean, I,

02:46 - 51.110 I understand your characterization of it as a suit, like a civil suit.

02:46 - 54.337 At the time, it was not a civil suit from our perspective,

02:46 - 57.383 which is why when we got the PC, what did you file it in?

02:46 - 59.618 So, so so what is it?

02:46 - 02.621 What did you file?

02:47 - 06.016 You filed a petition or in the alternative, ha be as?

02:47 - 09.261 Well, the client filed a petition. Okay.

02:47 - 11.597 And so that definitely is in the common Pleas Court.

02:47 - 12.765 But nobody seems to be trying

02:47 - 15.801 to preserve the idea that it was a proper PCA petition.

02:47 - 16.670 Well, it wasn't a

02:47 - 19.996 it wasn't a proper PCA claim at the time because you raised a Mooney's

02:47 - 23.876 claim after the statute had been amended, amended to overrule money.

02:47 - 27.213 So obviously I get it, get it at that point.

02:47 - 30.149 And I'm like, what are the claims that I have available at this point?

02:47 - 33.019 And they were the, the, the small skeevy block

02:47 - 36.956 or Commonwealth court, claim, which I raised and was rejected.

02:47 - 40.383 And then the rebuttable presumption based on his right to reputation claim.

02:47 - 43.329 And so I raised that up again. You're focusing on the claim.

02:47 - 47.057 I'm focusing on who you sued because that determines jurisdiction.

02:47 - 50.403 So? So who?

02:47 - 53.239 And you say you don't like my use of the word suit? Well,

02:47 - 56.666 the the Commonwealth court's original jurisdiction extends beyond suits.

02:47 - 00.413 Petitions or whatever.

02:48 - 04.116 It's really depends on whether it was a Commonwealth government who responded.

02:48 - 07.544 Who who did you expect to respond as a party

02:48 - 11.815 to whatever you filed on behalf of your client or whatever your client file?

02:48 - 15.118 I mean, I suppose I expected the DA's office to say, well, that's the lawyer.

02:48 - 18.721 The question is, who's the party?

02:48 - 21.101 I mean,

02:48 - 24.127 who's a party accountable for the judgment?

02:48 - 27.406 If you want who's the party accountable

02:48 - 29.408 for the judgment, who could you enforce it against?

02:48 - 32.011 Well, I mean, I

02:48 - 35.381 mean, I suppose I would, I would send the order saying

02:48 - 39.342 remove him from the registry to PSP because that's where he is.

02:48 - 40.020 Right?

02:48 - 43.046 But it's the Commonwealth who prosecuted in my

02:48 - 45.724 what was the Commonwealth who prosecuted him.

02:48 - 46.749 And at the time

02:48 - 49.862 torso area wasn't decided.

02:48 - 52.465 So I was still looking at this as the potential of not

02:48 - 55.925 being collateral consequences calculated as being punishment.

02:48 - 58.962 Let me ask you a technical question.

02:48 - 02.675 Did you file this and a particular docket number?

02:49 - 07.580 I mean, was this filed, in the same,

02:49 - 11.875 at the same docket as his original, judgment sentence?

02:49 - 14.987 Well, I mean, it was and I suppose the reason that I did that.

02:49 - 16.122 Well, but I'm asking that,

02:49 - 20.450 I mean, is it's not as though the Commonwealth was actually a party.

02:49 - 25.155 You were just using the existing file

02:49 - 28.901 in order to raise this issue

02:49 - 33.329 regarding the classification that this trial court imposed.

02:49 - 36.041 Yes. That's correct.

02:49 - 39.512 And I mean, so this it's captioned the way that it's captioned

02:49 - 44.240 because it was captioned this way when, the action was brought against

02:49 - 49.145 the criminal proceeding was instituted against your client in the first instance.

02:49 - 50.756 Yes. That's correct. Okay.

02:49 - 52.658 So okay.

02:49 - 55.127 And I moved on from there. Of course.

02:49 - 57.963 My issue with that is, is that I can't really deal

02:49 - 01.734 with Civil War as the Office of Conflict Counsel.

02:50 - 03.302 That's really beyond my role.

02:50 - 06.329 I'm modified version of a public defender.

02:50 - 09.966 So when I get a case, of course the first thing I do is is,

02:50 - 12.912 well, okay, he's filed a PCR ra.

02:50 - 14.947 How do I how do I want to get this claim?

02:50 - 19.309 Well, I'm going to cover my basis and litigated as a PCR and a ha be as

02:50 - 24.614 in in the court in which the classification was first determined.

02:50 - 26.058 Correct.

02:50 - 28.661 Because at that time I viewed it as a restraint.

02:50 - 29.362 I mean, obviously,

02:50 - 32.522 I viewed it as a restraint, which was potentially was punishment.

02:50 - 34.600 This court has decided otherwise.

02:50 - 37.369 Your client wasn't a your client was an SVP, right?

02:50 - 38.171 It was not SVP.

02:50 - 41.473 The court made no determination as to what your client's registration was.

02:50 - 44.476 The statute made a determination as to what your client's registration

02:50 - 45.500 obligation was.

02:50 - 49.782 If he was SVP, the trial court would have been

02:50 - 53.953 had some role in determining your client's status on the registry.

02:50 - 56.422 But here it was just the conviction that determined your client's status.

02:50 - 59.449 But did the court enter an order confirming that?

02:50 - 00.694 Yeah, yeah.

02:51 - 02.795 The court's required to do a colloquy under the statute.

02:51 - 03.697 Right.

02:51 - 07.233 But at the time he entered his plea, is that what you're referring to?

02:51 - 10.260 The time he was found to be,

02:51 - 13.138 a registrant or sauna?

02:51 - 17.076 He was he was read during after he entered his plea and was sentenced.

02:51 - 19.612 He was read the standard registration requirements

02:51 - 22.639 by the district attorney, which is set forth by the statute,

02:51 - 25.708 is not any discretionary act by the Common Pleas Court.

02:51 - 28.645 I mean, I mean, I can't dispute that.

02:51 - 32.291 Counsel, maybe you could help me with this.

02:51 - 36.486 In Larcombe, we essentially said,

02:51 - 39.989 I'll shorten it.

02:51 - 44.927 There is no particular place or form

02:51 - 49.065 that this type of, claim needs to be raised.

02:51 - 50.442 My. Correct.

02:51 - 51.144 Correct. Okay.

02:51 - 54.170 And in Larcombe, same case,

02:51 - 56.649 we determined that

02:51 - 59.876 the registration requirement was non punitive.

02:52 - 03.956 Two things that that case did registration non punitive.

02:52 - 06.492 Second we don't care where how you bring it.

02:52 - 09.461 And we went through a list of different

02:52 - 12.855 types of requests for relief that we filed.

02:52 - 17.836 How how is this case different than McComb I mean what is it about this case

02:52 - 21.931 that now raises the issue that there is only one particular case

02:52 - 24.934 place in which this type of claim can be brought.

02:52 - 30.849 You know, I don't think this case does raise that.

02:52 - 32.851 It can only be brought in one place.

02:52 - 35.878 I think it can be brought wherever I just happened to bring it

02:52 - 37.723 where I thought was best.

02:52 - 39.224 I mean, I don't know if that really answers your.

02:52 - 40.426 What's your view?

02:52 - 44.463 Well, I mean, you look at Larcombe and we went through the list of various

02:52 - 45.655 types of,

02:52 - 49.601 proceedings that we recognized

02:52 - 52.962 as being a viable course to bring this, this type of claim.

02:52 - 56.733 How do you feel about coram nobis?

02:52 - 59.678 You don't get that question every day.

02:52 - 02.448 No, I definitely don't get that question every day.

02:53 - 05.475 I mean, at the at the time, I just went back

02:53 - 08.620 based on my own experience of how I had raised these in the past,

02:53 - 11.647 and I had raised them when I got them from defendants

02:53 - 15.160 under PCA and under ha be as, because I felt like that covered me

02:53 - 19.331 because we viewed it as, we viewed the registration requirements

02:53 - 22.358 and the information that was disseminated as a restraint.

02:53 - 25.003 Okay.

02:53 - 25.270 Thank you.

02:53 - 25.505 All right.

02:53 - 28.507 Does anyone have any other questions?

02:53 - 30.042 Thank you both. Well-argued.

02:53 - 32.411 Thank you.

02:53 - 35.438 Up next his argument and come out versus Anderson.

02:53 - 38.317 It concerns the standard to suppress physical evidence

02:53 - 41.344 and statement made to police as a result of a traffic stop

02:53 - 44.690 where the motorist is not the owner of the vehicle.

02:53 - 46.558 The relevant facts are as follows.

02:53 - 50.596 I made the seven 2020 police officer initiated a traffic stop of a motorist

02:53 - 51.997 in the city of Chester.

02:53 - 55.224 During the stop, the motorist provided the officer with his driver's license

02:53 - 57.569 and it revealed he did not own the vehicle.

02:53 - 59.505 The officer asked the motorist to exit the car

02:53 - 02.141 and then performed a patdown search for weapons.

02:54 - 04.276 A second police officer arrived at the scene.

02:54 - 05.477 He performed a protective

02:54 - 08.504 sweep of the areas of the vehicle within the motorist's reach.

02:54 - 12.308 The second officer recovered a firearm from inside the center console of the car.

02:54 - 16.012 The police then placed the motor under arrest on police custody.

02:54 - 18.690 The motorist said that he was the only person in the car.

02:54 - 21.160 So the firearm has to be mine.

02:54 - 21.961 The Commonwealth charged

02:54 - 25.721 a motorist with firearms not to be carried without a license and related offenses.

02:54 - 28.267 The motorist and filed the suppression motion

02:54 - 31.136 seeking to suppress physical evidence seized and statements

02:54 - 34.139 made to the police as a result of the traffic stop.

02:54 - 36.208 Trial court denied the motion following a suppression

02:54 - 38.844 hearing in the case proceeded to a jury trial.

02:54 - 40.436 The jury ultimately found the motorist

02:54 - 44.750 guilty of firearms that took care of the license,

02:54 - 48.277 and the trial court sentenced him to 42 to 84 months incarceration.

02:54 - 51.123 The motorist appealed to the Superior Court,

02:54 - 54.092 which is one of the two intermediate appellate courts in Pennsylvania,

02:54 - 58.020 arguing in relevant part the trial court aired and denying his suppression motion.

02:54 - 01.834 Superior court disagreed, holding that the motorist lacked a reasonable

02:55 - 06.772 expectation of privacy in the vehicle because he did not present any evidence

02:55 - 10.132 at the suppression hearing he was, he was authorized to drive the car.

02:55 - 12.778 The movie appealed to Penn State Supreme Court,

02:55 - 15.147 and the Supreme Court accept the review on the following question.

02:55 - 15.915 Quote.

02:55 - 17.115 Whether defendant's burden

02:55 - 20.276 establish a reasonable expectation of privacy at a suppression hearing

02:55 - 24.456 requires the defendant to firmly present evidence of permission

02:55 - 28.384 to use a vehicle where the defendant is not the registered owner of the vehicle.

02:55 - 32.564 But the Commonwealth's evidence on its own does not negate a reasonable

02:55 - 35.100 expectation of privacy. Close quote.

02:55 - 36.969 The motor answers the question in the negative.

02:55 - 38.270 In his briefs,

02:55 - 41.573 the motorist argues that on the spur of course decision, the Commonwealth need

02:55 - 45.535 only establish that a person is driving a car that is not registered in their name

02:55 - 49.071 to negate a driver's reasonable expectation of privacy in the vehicle.

02:55 - 52.708 The motorist contends that this effectively creates a per se rule

02:55 - 55.888 that every person drives a car register, or to another,

02:55 - 59.615 is constitutionally presume to lack an expectation of privacy.

02:56 - 02.861 According to the motorist,

02:56 - 05.664 such a scheme affords a Commonwealth too wide of breath

02:56 - 10.235 to evade their duty to prove its evidence was not obtained in violation of the Q's

02:56 - 11.670 constitutional rights.

02:56 - 15.807 The motorist instead urges the court to adopt the rule that a driver of vehicle

02:56 - 18.944 registered another has a registered as a reasonable expectation

02:56 - 23.539 of privacy in the car, or no evidence of unlawful possession exists.

02:56 - 27.743 The Commonwealth, in contrast, reframes the question presented in its briefs

02:56 - 30.822 as a request to upend decades of case law.

02:56 - 31.691 The Commonwealth argues

02:56 - 33.759 that the current law requires it to present evidence

02:56 - 36.428 that the accused lacked a privacy interest.

02:56 - 39.331 Cometh contends it met this burden by demonstrating at the suppression

02:56 - 42.625 hearing that the motor was driving a vehicle registered to someone else,

02:56 - 44.202 according to the Commonwealth.

02:56 - 47.372 The burden then shifted to the motorist to demonstrate his own privacy.

02:56 - 48.907 Interest in the car,

02:56 - 51.510 owning evidence at the hearing that he had permission or authority

02:56 - 53.579 from the owner to drive the car.

02:56 - 56.906 The Commonwealth maintains the motor is asking the court to overrule precedent

02:56 - 58.450 and hold for the first time

02:56 - 01.978 that whereas here a motorist is the sole occupant and driver of a car,

02:57 - 05.991 his reasonable expectation of privacy is presumed and the burden

02:57 - 09.485 is solely on the Commonwealth to disprove all privacy expectations.

02:57 - 11.430 The Commonwealth rejects that.

02:57 - 14.166 Ask the court to reject an invitation.

02:57 - 17.593 Let's watch and listen to the oral argument in Commonwealth versus Anderson.

02:57 - 21.273 Good afternoon, Lee Aubry, on behalf of appellant.

02:57 - 26.068 Mr. Anderson, my son and I don't share the same last name.

02:57 - 30.172 So when he begins to drive the family car,

02:57 - 34.086 it's my expectation that he'll offer his friends some rides

02:57 - 39.191 and may decide to, refuse rides to other people, exclude them,

02:57 - 41.660 that he'll have the authority to exclude them from the car.

02:57 - 46.155 And I anticipate that he'll treat the car similarly to the way he does now

02:57 - 47.966 as an extension of our home,

02:57 - 51.970 with some t shirts and smelly cleats and mail and random

02:57 - 55.297 schoolwork tossed about the hatchback more than I might like.

02:57 - 58.768 And he will have the same

02:57 - 04.040 experience of anticipated privacy in the vehicle as the driver

02:58 - 08.110 that I currently do now, in expectation of privacy.

02:58 - 11.023 Should he be pulled over?

02:58 - 14.984 He should have the same rights as I do at a suppression hearing.

02:58 - 21.323 Society recognizes that drivers of vehicles

02:58 - 24.636 tend to carry an expectation of privacy in their vehicles.

02:58 - 29.665 And certainly this court has acknowledged, that right

02:58 - 33.135 in the context of the Pennsylvania Constitution.

02:58 - 37.306 And the federal courts have recognized that under the Fourth Amendment,

02:58 - 42.044 non ownership of the Car is a neutral fact.

02:58 - 46.758 That renders it possible that someone might legitimately

02:58 - 50.486 be in the car and possible that they may not.

02:58 - 01.840 I have the same concern when they drive my vehicles.

02:59 - 05.377 But tell me, how does your,

02:59 - 08.404 area or your vision of this?

02:59 - 09.881 How does that carry over?

02:59 - 13.175 If it's an instance where the is a stolen vehicle?

02:59 - 17.022 Okay, well, we look to rule,

02:59 - 22.961 551 to see whose burden it is to demonstrate that the evidence that's

02:59 - 26.122 gathered against the client was done so in a constitutional manner.

02:59 - 30.335 And so if the Commonwealth is seeking to rely on the fact that someone's stolen

02:59 - 31.304 a car or otherwise

02:59 - 34.630 has wrongful possession of the car, that they drive as the sole driver,

02:59 - 39.611 then the Commonwealth has a burden to introduce facts, tending to show

02:59 - 42.638 by a preponderance of the evidence that it's more likely or not,

02:59 - 46.776 that they lack that legitimate presence if they're if they've stolen the car.

02:59 - 50.756 And, you know, people are beautiful, chaotic creatures.

02:59 - 52.224 So there may be some other scenario

02:59 - 55.861 where someone's in a car without the legitimate presence.

02:59 - 59.188 And in that case, you know, society's not willing to recognize

02:59 - 02.200 a reasonable expectation of privacy.

03:00 - 05.728 If the Commonwealth wants to rest on illegitimate presence,

03:00 - 08.740 to to show by preponderance of the evidence

03:00 - 10.842 that there's no reasonable expectation of privacy,

03:00 - 15.680 then it's their burden to introduce facts, that make it more probable

03:00 - 20.585 than not that, there's no legitimate presence in the car.

03:00 - 24.589 And this case really comes down to one very simple thing, which is that

03:00 - 28.584 the absence of one's name on a car registration is not a fact.

03:00 - 32.397 How about the fact that, this,

03:00 - 36.926 individual did not offer up the the excuse that.

03:00 - 40.896 I'm driving my aunt's car, and I have permission to drive it.

03:00 - 43.875 Well, again, the rule

03:00 - 47.245 581 tells us whose burden it is at a suppression hearing.

03:00 - 51.607 And so, you know, we can always look to, more evidence that we might like to see.

03:00 - 55.487 But it is the Commonwealth who has the burden to produce the evidence

03:00 - 56.755 and persuade.

03:00 - 59.691 And, of course, this court has laid out

03:00 - 02.985 kind of how that plays out in Commonwealth versus an empire.

03:01 - 08.457 So the defendant's under no burden to

03:01 - 13.271 get on the stand, or rather, defense attorney is under no burden

03:01 - 16.298 to put their client on the stand at a suppression hearing

03:01 - 19.969 and open them up to questioning over the reasons why they're in the car.

03:01 - 24.006 By the time the suppression hearing has happened, 9 to 10 months after this stop,

03:01 - 27.352 the Commonwealth has more than enough time to gather any evidence

03:01 - 31.113 they might want to introduce, showing that the car was somehow stolen.

03:01 - 33.191 They did not do so in this case.

03:01 - 36.919 In fact, they later are necessarily irrelevant at a suppression hearing.

03:01 - 40.098 Because we're the inquiry we're kind of limited to

03:01 - 43.425 is what was in the police officer's mind at the time of the search.

03:01 - 47.005 So you're asking us to impose some kind of rule that we can produce,

03:01 - 47.940 that Commonwealth

03:01 - 51.200 can produce evidence at a hearing which may occur months down the road,

03:01 - 55.004 to somehow impact upon the legitimacy or the reasonableness of a

03:01 - 59.150 of a police search that happened months or a year before short.

03:01 - 02.420 Well, the in this instance, we don't really know what was in

03:02 - 04.422 the mind of the officer on that particular point.

03:02 - 08.660 If you look back at the trial record, the prosecutor starts to question about

03:02 - 13.398 was there anything here about, you know, who owned the car and the prosecutor,

03:02 - 17.602 Cutts the police officer, off very quickly before we get an answer on that.

03:02 - 20.071 So we can look to other indicating factors right here.

03:02 - 21.406 As someone who was pulled over

03:02 - 25.143 driving a car, there's no indication the car has been broken into.

03:02 - 28.013 The back windows are intact, the steering wheels intact.

03:02 - 29.681 Indeed.

03:02 - 34.152 We have a subjective, expectation of privacy

03:02 - 38.089 that's demonstrated by both the officer and the driver and indeed,

03:02 - 41.092 the trial court, who did not make a determination on the reasonable

03:02 - 44.453 expectation of privacy in their 1925 opinion.

03:02 - 48.300 The officer never charged my client with,

03:02 - 52.103 driving an unauthorized use of a vehicle or anything like that.

03:02 - 54.773 He proceeds with the stop.

03:02 - 59.878 And when we are talking about the burden at issue, we are at that point talking

03:02 - 02.881 about what evidence was brought forth at the suppression hearing.

03:03 - 05.016 So if the question is kind of how come I didn't

03:03 - 08.586 put my client or my colleague didn't put their client up, to be open

03:03 - 11.957 to questioning, which arguably could be used against him

03:03 - 16.485 and impeachment later in the process, although not directly, against him.

03:03 - 20.732 The question,

03:03 - 23.535 you know, could also be how come the Commonwealth didn't produce

03:03 - 27.372 evidence, that there was no legitimate present car to meet their burden? Yes.

03:03 - 31.533 Correct me if I'm wrong, but did we for sure

03:03 - 36.614 introduced the fact that the car was not stolen in his case?

03:03 - 39.918 In chief, the indeed, they did put the officer.

03:03 - 42.253 And what he introduced was it was not reported as stolen.

03:03 - 45.414 They ran it through and also introduced that,

03:03 - 48.493 the defendant

03:03 - 51.520 shared the same address with the registration of the vehicle.

03:03 - 52.565 That is correct.

03:03 - 55.633 And in fact, they, they he could not recall whether or not

03:03 - 57.135 he had asked for the license.

03:03 - 00.972 And then a production of burden motion to suppress it falls

03:04 - 04.867 within the Commonwealth to prove by a preponderance that,

03:04 - 10.849 the car is either stolen or not, that the individual driving

03:04 - 15.010 the vehicle was not in possession either for non possession.

03:04 - 16.221 I agree, Your Honor.

03:04 - 19.715 Counsel, your response to Justice Socrates question kind of goes to what you just

03:04 - 23.652 where you first said in your opening remarks, which piqued my interest.

03:04 - 26.831 Are you saying that we should recognize,

03:04 - 31.903 if we haven't already, a principle that anybody who is driving

03:04 - 35.807 a vehicle is presumed to have a constitutional or protected

03:04 - 39.935 privacy interest in the vehicle until the Commonwealth proves otherwise.

03:04 - 45.850 I think that the totality of the circumstances, analysis still applies.

03:04 - 51.990 And because of that, there may always be that

03:04 - 55.693 random scenario where that presumption might not be applicable.

03:04 - 59.264 Oh, you say that presumption, which sort of says, yes, I'm an advocating

03:04 - 02.567 for a presumption that every person driving in a vehicle

03:05 - 06.395 is presumed to be lawfully doing so and therefore enjoys

03:05 - 08.006 their constitutional rights.

03:05 - 11.033 Attach at every stop by every police officer.

03:05 - 14.770 And it's up to the Commonwealth at a suppression hearing to prove,

03:05 - 19.508 the absence of a constitutionally protected right.

03:05 - 24.889 Yes. I do think the Commonwealth has a burden of proof with regard to the absence

03:05 - 28.717 of a constitutionally protected right, and I think it would mean no permission

03:05 - 32.387 like bringing bringing the mother in or whoever is.

03:05 - 34.532 They did not have permission, I think.

03:05 - 37.469 I think that is right. Or the or the car was stolen.

03:05 - 40.205 Because what we're getting at is when we get back

03:05 - 43.332 to willing to recognize a legitimate privacy interest.

03:05 - 45.310 But how do we do that?

03:05 - 48.079 I mean, in reality, I keep coming back to the point.

03:05 - 49.347 I mean, Justice Brosnan justice.

03:05 - 53.084 Let me make excellent points, but we're talking about something

03:05 - 54.343 at a suppression hearing,

03:05 - 58.256 because what we're trying to figure out is a

03:05 - 01.283 whether or not the person had a legitimate,

03:06 - 04.996 reasonable expectation of privacy in what society reasonably expects

03:06 - 08.290 under those circumstances and be permission to to use the car.

03:06 - 11.627 How does a police officer on a street in North Philadelphia,

03:06 - 15.373 Erie, Pennsylvania to Scranton at the time he pulls a vehicle

03:06 - 18.476 over ask for vehicle identification of registration?

03:06 - 20.411 I don't have registration.

03:06 - 24.706 What burden are you asking us to impose upon law enforcement in that situation?

03:06 - 27.519 The same exact one that was present here in the same one.

03:06 - 31.613 That happens all the time, which is that the police officer pulls someone over.

03:06 - 32.891 They've other words.

03:06 - 33.692 You don't own the vehicle.

03:06 - 36.718 That doesn't automatically give us a per se right to search the vehicle.

03:06 - 41.190 Absent other conditions, such as probable cause, nervousness,

03:06 - 44.302 furtive movements in the car, something along those lines, right?

03:06 - 44.970 Absolutely.

03:06 - 48.306 And that's what that's what we're talking about in this scenario.

03:06 - 51.242 We're looking at a warrant less car search. Right.

03:06 - 54.770 So the Constitution, both the Pennsylvania and the United States call for warrants,

03:06 - 58.583 of car searches, with some exceptions,

03:06 - 01.910 limited exception in Pennsylvania, and

03:07 - 04.422 so whether or not there's

03:07 - 08.083 reasonable suspicion, probable cause, those are all things that we are asking

03:07 - 12.421 the suppression court in, in this case, the Superior court to analyze.

03:07 - 13.698 They never get there.

03:07 - 16.935 They never have the judicial review because they just say reasonable.

03:07 - 19.270 They got no reasonable expectation of privacy in the vehicle.

03:07 - 20.772 He has a known period end story.

03:07 - 22.473 That's right. And if you look at the Superior.

03:07 - 25.500 Court opinion here, it's a very brief one sentence.

03:07 - 29.113 They didn't show that they were they had permission in that day.

03:07 - 29.982 And therefore

03:07 - 33.551 we don't have to reach the merits, which of course undermines

03:07 - 35.920 the entire purpose of the exclusionary rule,

03:07 - 39.147 which is not just to vindicate the privacy rights of an individual,

03:07 - 44.862 but really to ensure, deter, from abuses of the broad power

03:07 - 48.090 that we grant to curious as to what your answer to this question is,

03:07 - 49.725 I think my colleagues will be as well,

03:07 - 52.270 which should be resolved.

03:07 - 53.671 First.

03:07 - 56.798 Was the search proper, constitutionally,

03:07 - 02.280 meaning obviously there was no warrant, but was was the search nonetheless proper?

03:08 - 04.515 Was there you know, was a good Terry stop and for

03:08 - 07.542 it was inventories or whatever you want to want to say applies.

03:08 - 09.687 Or do we first have to address the question

03:08 - 12.290 of whether a constitutional right attached at all?

03:08 - 15.317 Because here we're the Superior Court

03:08 - 18.796 kind of left us with only tackling the one issue.

03:08 - 21.923 But it could go back to the Superior Court and your client could still lose.

03:08 - 27.029 So which do you suggest a court tackle first, whether the right attaches

03:08 - 31.366 or whether the search was valid?

03:08 - 36.738 In my mind, I see that is one question.

03:08 - 40.718 At this point, because we are dealing in the context of automatic standing,

03:08 - 42.553 which is a really important fact.

03:08 - 45.580 We know that it because my client was charged with possession,

03:08 - 51.062 there's automatic standing already for, him or another person.

03:08 - 55.090 And similarly situated to demand that the government show

03:08 - 59.804 that their search was that their evidence was gathered in a constitutionally

03:08 - 04.166 permissible manner and so at this point, we're already at this analysis

03:09 - 07.779 of whether or not, it was constitutionally permissible

03:09 - 12.908 and the conscious, the Commonwealth's kind of resting on a substantive argument

03:09 - 16.411 that there were no concerns, there were no privacy interests

03:09 - 20.692 here, and therefore it was constitutionally permissible.

03:09 - 21.893 And that we don't have to look at that.

03:09 - 22.828 There's nothing

03:09 - 24.829 this is the reason the Commonwealth wrestling in that argument

03:09 - 27.131 is because you didn't raise it at the suppression hearing.

03:09 - 28.067 You didn't seem there.

03:09 - 29.767 I mean, my review of the record, you didn't

03:09 - 33.604 raise a reasonable expectation of privacy at the suppression hearing.

03:09 - 34.573 Therefore, the Commonwealth

03:09 - 37.709 just threw the information out there that he didn't own the vehicle.

03:09 - 39.610 He wasn't a registered owner of the vehicle.

03:09 - 40.812 And we moved on.

03:09 - 41.680 I think the challenge

03:09 - 43.781 at the time of the suppression hearing was not,

03:09 - 45.817 hey, my client's got a reasonable expectation of privacy.

03:09 - 48.586 This is his aunt's vehicle. He uses it all the time.

03:09 - 51.522 It was the police officers didn't have probable cause.

03:09 - 52.690 IT suppression court

03:09 - 55.717 made the determination that the police had probable cause.

03:09 - 00.298 Noted he didn't own the vehicle and then moved on at the trial.

03:10 - 02.700 The Commonwealth then presented presented evidence

03:10 - 06.204 that the defendant had been pulled over in the vehicle before, had used a vehicle

03:10 - 09.965 before, had some exhibited familiarity before,

03:10 - 13.535 the kind of bootstrapped the reasonable expectation of privacy in the vehicle.

03:10 - 17.548 So that issue wasn't really raised by you were discretionary, right?

03:10 - 20.785 RR the council did of respond to argument

03:10 - 24.222 when the Commonwealth concluded putting forward all of their evidence.

03:10 - 28.059 They did make an argument regarding reasonable expectation.

03:10 - 31.863 And at that point, defense counsel did say, you know, Your Honor,

03:10 - 34.198 this is not a case of a stolen car.

03:10 - 36.701 There was a little argument there, but in fact, you're correct.

03:10 - 42.197 The trial, the suppression court, didn't issue a finding, in fact, on the spot.

03:10 - 44.108 But when the appeal was raised,

03:10 - 47.736 it was flagged for them as one of several issues included, including the

03:10 - 50.681 whether or not there was reasonable suspicion or probable cause.

03:10 - 53.351 The prolonged detention, was flagged for the court.

03:10 - 56.421 But even in their 1925 opinion,

03:10 - 00.925 the trial court did not reach reasonable expectation of privacy,

03:11 - 04.328 which does kind of go to your question of like the order.

03:11 - 07.456 I think the Commonwealth first is an MPA makes it very clear,

03:11 - 10.601 that the trial court doesn't have to reach that issue.

03:11 - 15.039 They they can just go well, on the trial court did, and it's the Superior Court

03:11 - 18.943 that decided to really jump on the issue of reasonable expectation.

03:11 - 21.367 That's why I'm saying it could go back to the Superior Court.

03:11 - 25.016 Here, your client could.

03:11 - 28.276 I guess you recognize that your client could ultimately lose on that?

03:11 - 30.521 But you are just so we're clear.

03:11 - 33.658 You believe that our law recognizes a presumption

03:11 - 37.085 of constitutionally protected rights for any driver of a vehicle?

03:11 - 40.422 Until the Commonwealth proves that they don't have one.

03:11 - 43.034 I think that is a fair statement.

03:11 - 48.864 I would also, argue that the Commonwealth is really pushing for a per se rule.

03:11 - 55.012 That is is way too narrow here, a per se rule that if someone can't show,

03:11 - 58.316 is not getting up there and showing that they have permission to drive the vehicle

03:11 - 03.445 the day of, that we don't have to reach the merits of any other aspect of their

03:12 - 07.959 their concerns around the police action and the United States versus Byrd

03:12 - 13.097 kind of, dismissed that logic, on the federal level.

03:12 - 17.034 And certainly our precedent here under Alexander Commonwealth versus

03:12 - 21.439 an empowered burden the defendant produced, produced testimony

03:12 - 22.207 at the suppression

03:12 - 23.975 hearing that he was authorized to use the vehicle,

03:12 - 26.143 even though his name wasn't on the registration.

03:12 - 29.480 It was it was remanded for a finding of fact as to like the

03:12 - 33.885 the extent to which that person, given those facts, was similarly like

03:12 - 37.955 with similarly situated as a mere thief, and that he would not have,

03:12 - 39.590 reasonable expectation of privacy.

03:12 - 43.094 But there's kind of two aspects of that holding, and one certainly does

03:12 - 47.231 get into the contractual arrangement of a lessee with a rental agreement.

03:12 - 50.258 But the first section, the first part of that opinion really

03:12 - 56.331 just does go into the build up of opinions that happened across the circuit split,

03:12 - 00.611 in which courts were saying, well, someone's not on the,

03:13 - 02.280 they're not the lessee to a rental

03:13 - 05.316 and therefore there's no reasonable expectation of privacy.

03:13 - 09.387 In fact, the police officer in that case makes that comment at the stop

03:13 - 12.590 that is also in the testimony presented in that cases,

03:13 - 16.394 he looks at the lease, sees that the driver was not on the lease

03:13 - 20.231 as as a permitted renter, turns to his colleague and says, oh,

03:13 - 22.333 he has no reasonable expectation of privacy.

03:13 - 27.171 And that ruling turned, you know, a lot of case law

03:13 - 29.273 that had built up where there's just been this presumption

03:13 - 33.311 that if someone's not a lisi of a rental agreement, all of a sudden

03:13 - 34.979 we don't have to reach the merits of the case

03:13 - 37.214 because they have no reasonable expectation of privacy.

03:13 - 41.085 And in fact, some of the cases cited by the Commonwealth,

03:13 - 44.980 such as Burton, is a similar fact pattern with the rental.

03:13 - 46.290 There's no difference here.

03:13 - 49.618 If it's a question of someone whose name is not on the registration.

03:13 - 53.664 Any other questions for Miss Aubrey?

03:13 - 54.732 Thank you very much.

03:13 - 54.967 Thank you.

03:13 - 57.993 Want to hear from Miss Cami?

03:14 - 04.742 Yeah,

03:14 - 05.943 please.

03:14 - 07.945 Good afternoon, Chief Justice Todd.

03:14 - 10.014 Justices of this honorable bench.

03:14 - 13.408 My name is Rachel Cami from the Delaware County office of the District Attorney.

03:14 - 15.586 And I represent the Commonwealth of Pennsylvania.

03:14 - 17.788 The appellate in this matter.

03:14 - 22.593 Right off the bat, I want to address something that, appellant has mentioned,

03:14 - 27.222 and that is that we are here asking this court to create a per se rule.

03:14 - 30.801 We're we're not here asking this court to do anything

03:14 - 35.296 besides follow the well set decades of precedent

03:14 - 40.511 that when the Commonwealth produces evidence that a vehicle driver

03:14 - 45.650 is not the owner, that is then their turn to persuade the court.

03:14 - 46.117 I'm not.

03:14 - 46.752 I'm stop you.

03:14 - 50.111 There isn't a real is ownership or non permission.

03:14 - 54.182 You're putting the focus on ownership.

03:14 - 56.894 It also requires non permission

03:14 - 00.822 to operate move remove that vehicle or any item from that vehicle.

03:15 - 03.434 That's what our precedent says.

03:15 - 06.461 So share with me what did the Commonwealth introduce

03:15 - 09.764 to show non possession not ownership

03:15 - 13.301 because we already have your officer

03:15 - 16.504 put into evidence at the car was not in stolen status

03:15 - 21.519 and that the defendant or the the individual driving the vehicle shared

03:15 - 24.546 the same address as the registered owner.

03:15 - 28.750 Now where is the evidence of non permission?

03:15 - 33.088 Your honor, I would answer that question kind of twofold.

03:15 - 36.157 Yes, except that the case

03:15 - 40.638 says that when you produce, evidence

03:15 - 43.665 that the driver of a car is not the registered owner,

03:15 - 48.036 it then does become the where share with me that case law.

03:15 - 49.313 Sure.

03:15 - 54.042 I would say this court first reaffirmed that in Commonwealth versus Peterson,

03:15 - 58.089 which was in 1993 and then several cases the court case.

03:15 - 00.791 Right? No, that's a Supreme Court case.

03:16 - 03.184 What's that say? I have it for you right here.

03:16 - 18.109 My apologies, Your Honor.

03:16 - 21.136 Thank you.

03:16 - 35.059 I just pulled it up.

03:16 - 35.927 My apologies.

03:16 - 38.395 I was flipping, but, Yes.

03:16 - 42.257 Commonwealth versus Peterson, 636 a 2d 615.

03:16 - 45.527 And what it what it really stands for is the premise that

03:16 - 49.106 at the core of this, the question is

03:16 - 52.843 whose job is it when an individual

03:16 - 55.904 is asserting a privacy interest, whose job is it to prove that?

03:16 - 58.973 But Peterson, if I'm looking at this direct case,

03:16 - 04.445 is regarding drugs, an abandoned store front, not a vehicle,

03:17 - 07.491 which non permission is required,

03:17 - 10.518 such as cited by Hawkins.

03:17 - 13.365 It tell me,

03:17 - 18.302 how does Peterson apply when it's talking about an abandoned building and drugs.

03:17 - 21.629 With regard to the non permission to drive a vehicle.

03:17 - 25.543 But for the larger premise, your honor, my my apologies

03:17 - 27.344 if I misconstrued your question.

03:17 - 31.172 The larger premise that when you are asserting a privacy interest,

03:17 - 33.918 whether it be in a vehicle, whether it be in a home,

03:17 - 36.182 whether it be on a computer, whether it be in a building,

03:17 - 40.381 there does come with that some job

03:17 - 45.486 to show a court, to persuade a court why you have that interest in something.

03:17 - 49.657 Yes. But you do not meet its burden pursuant to 530.

03:17 - 52.760 What is a 541? Yes, it is, Your Honor.

03:17 - 56.798 So I'm I guess the question I'm asking you is share with us

03:17 - 02.112 how this record indicates your introduction of non possession.

03:18 - 05.482 The ability to not possess that vehicle such

03:18 - 08.509 that there would be a shift of the burden back to the defendant.

03:18 - 10.588 That's when the burden shifts.

03:18 - 12.256 It's always upon the Commonwealth.

03:18 - 16.284 Might be by preponderance of evidence, but it's still on your shoulders.

03:18 - 20.889 And I'm asking you share with me we're us wearing your record.

03:18 - 23.367 There's not permission testimony.

03:18 - 25.169 I just read the opposite.

03:18 - 26.537 The car is not stolen.

03:18 - 28.806 They share the address, and the officer said

03:18 - 32.443 he thought there was testimony that the individual on the vehicle said,

03:18 - 38.006 oh, it's, sanitizer in the console, which in the totality of the circumstances

03:18 - 42.610 indicates a frequent or a knowledge of what's involved in that car,

03:18 - 48.383 which to me is implicit with ownership and not ownership and permission.

03:18 - 52.253 I'm asking you, based upon the facts that you introduce.

03:18 - 54.155 This is Commonwealth evidence.

03:18 - 57.735 Share with me based upon your evidence.

03:18 - 00.204 Where is the non permission?

03:19 - 02.773 I do understand your question, Your Honor and I

03:19 - 05.442 perhaps we have a difference on, on on that.

03:19 - 09.304 But my, my answer to that is that it

03:19 - 14.175 the a lack of ownership was enough to shift the burden to.

03:19 - 19.256 And why why wasn't it just as important for you to introduce, say,

03:19 - 22.993 an affidavit of ownership, not permission, which is regularly done

03:19 - 24.228 at preliminary hearings?

03:19 - 28.999 And we know you can introduce hearsay in a motion to suppress what's not.

03:19 - 32.026 And why is it now a burden on the defendant

03:19 - 37.031 to provide evidence that the Commonwealth should introduce in its case in chief?

03:19 - 39.777 That's the question I'm struggling with.

03:19 - 40.911 I understand, Your Honor.

03:19 - 42.446 I so answer that question.

03:19 - 46.483 Why, why, why was there no introduction of ownership, not permission?

03:19 - 48.152 An affidavit.

03:19 - 49.486 What you're saying to us is.

03:19 - 52.714 Oh, because we said she's not the name is not on the owner's card.

03:19 - 56.851 The responsibility of the Commonwealth to deprive an individual potential liberty.

03:19 - 00.464 It switches because you've introduced

03:20 - 03.257 the fact that an individuals names are on the court,

03:20 - 06.704 yet the same address is and

03:20 - 10.164 the police information proves the car is not in stolen status.

03:20 - 13.177 So I'm really, really confused.

03:20 - 16.180 Now, how do we shift the burden to defendants when you haven't

03:20 - 18.816 proven your own yet?

03:20 - 22.176 I under not just Peterson, but even cases

03:20 - 28.049 such as and cited and an empire and it's prodigies.

03:20 - 30.928 I do believe that the registration

03:20 - 34.765 not being in that person's name was enough to shift it.

03:20 - 36.600 And I do think there is

03:20 - 39.436 even a mostly superior court opinions that say that, though.

03:20 - 40.637 But it makes sense.

03:20 - 43.340 It makes sense that then the burden shifts to that person.

03:20 - 47.711 If it's not mine, how does the shift at the lone with with Justice.

03:20 - 52.240 Stockley saying, Justice Mundy son's driving her car, she's pulled over.

03:20 - 54.852 License and registration.

03:20 - 56.687 Here's my license, here's my registration.

03:20 - 58.489 Well, the car is not registered in your name.

03:20 - 00.224 It's not belong. It's my mom's.

03:21 - 02.893 How does it if you're asking us to say at that point,

03:21 - 05.920 the police officers can search the car because it's his mother's vehicle.

03:21 - 09.600 Well, can they or can't they,

03:21 - 12.727 under those circumstances of what you're advocating for?

03:21 - 16.164 Just so that I'm clear, justice McCaffrey,

03:21 - 18.475 that individual has told the police

03:21 - 22.270 officer, this is my mom's car, and I have permission and authority to use it.

03:21 - 24.281 Yeah.

03:21 - 25.582 Then no, I agree with you.

03:21 - 28.919 I at that point there is a what's the difference in this case you got to do.

03:21 - 31.855 You got a defendant driving a vehicle and he says off my ass car.

03:21 - 34.158 Well, respectfully, he did not say anything.

03:21 - 40.221 Your honor, that fact that it's his aunt's car is only introduced at trial.

03:21 - 41.832 Yeah, but the only the other evidence

03:21 - 44.668 that was introduced at trial, you specifically excluded it.

03:21 - 48.362 The motion to suppress hearing, such as his familiarity with the vehicle,

03:21 - 52.943 the statement about his aunt's car, the, searching around the glove compartment.

03:21 - 54.011 He said he used it before.

03:21 - 56.113 And the evidence that you were produced ultimately at trial,

03:21 - 59.107 that he'd been pulled over driving the same vehicle in the past.

03:21 - 02.910 If that's information, it's known for the police officer at the time of the stop,

03:22 - 04.688 doesn't that exhibit

03:22 - 08.583 a reasonable expectation of privacy that society would recognize as reasonable

03:22 - 11.061 that I'm authorized to use you?

03:22 - 13.063 Because it's my car and I drive it all the time.

03:22 - 14.231 I've used it before.

03:22 - 15.532 I knew the interior of the car.

03:22 - 17.601 I had some hand sanitizer in the car.

03:22 - 20.628 All of those particular facts that you introduced at trial

03:22 - 23.407 that were excluded at the time of the motion to suppress hearing.

03:22 - 25.909 Wouldn't that necessarily

03:22 - 29.137 give us a belief that there is a reasonable expectation of privacy?

03:22 - 33.350 Well, I wouldn't I can't speak to the fact of whether it was excluded or not.

03:22 - 36.744 I don't know when that information came to light.

03:22 - 39.790 What I will say, it's a trial. Yes.

03:22 - 42.817 I don't know if that was information that the Commonwealth had

03:22 - 46.254 at the suppression hearing or that was in discovery before trial.

03:22 - 47.532 It's.

03:22 - 51.702 But the only way that that your argument works here is, as I listen to

03:22 - 54.695 you answer, my colleagues, is that that

03:22 - 57.708 if the rest on an assumption

03:22 - 01.435 that non ownership is the same as, as wrongful possession,

03:23 - 05.249 and you cite and you mentioned a need for that, when exactly

03:23 - 08.276 the other way if I'm, if I'm recalling that case correctly.

03:23 - 12.055 I mean you want to you know take you take the example

03:23 - 15.183 of the 16 year old driving his mom's car for ice cream.

03:23 - 15.960 Get stopped.

03:23 - 18.962 This is mother of the testified the suppression hearing.

03:23 - 21.989 I mean you you seem to want to

03:23 - 25.326 in the face of our case law.

03:23 - 27.438 Get us to

03:23 - 32.776 to to stand with an assumption that non ownership is is wrongful.

03:23 - 34.444 That's exactly the opposite.

03:23 - 37.872 I think of what our case is say after all you can have

03:23 - 40.517 you have an expectation of privacy in a hotel room.

03:23 - 42.286 You don't own the hotel room.

03:23 - 45.022 You have an expectation of privacy in your rental car.

03:23 - 46.206 You don't own the rental car.

03:23 - 50.451 So I don't understand what leg you're trying to stand on here,

03:23 - 55.056 other than the Superior Court agreed with you, which I'm not sure why, but,

03:23 - 00.394 I mean, they need a permission slip every time they borrow their mom's car or.

03:24 - 01.672 Or what?

03:24 - 03.173 No, no, I wouldn't say that.

03:24 - 06.234 I what I said and what the Commonwealth is,

03:24 - 10.871 resting on, so to speak, is not that you need a permission slip,

03:24 - 14.108 but at some point, yes, you do as that person

03:24 - 17.311 have to offer some kind of

03:24 - 19.823 permission or authority to use it.

03:24 - 23.317 And that is it can be as simple as it doesn't even have to be testimony.

03:24 - 24.329 What Mr.

03:24 - 27.455 Anderson could have said to the police officer was, this is my aunt's car.

03:24 - 30.734 It and I have is the defendant's burden

03:24 - 34.295 to show that he's not in wrongful possession.

03:24 - 39.867 At by the time, yes. Yes.

03:24 - 44.381 You do have an assumption of wrongful possession from not ownership.

03:24 - 48.209 That's the proposition of law that you want us to to bite on.

03:24 - 51.221 And that's the opposite of what

03:24 - 54.191 bird suggests, is it not?

03:24 - 56.827 It's also in contravention to rule 581, which

03:24 - 59.329 provides the burdens on the Commonwealth, not the defendant.

03:24 - 02.356 You don't ship the burden.

03:25 - 03.601 Well, I believe rule

03:25 - 07.395 581 does shift the burden after a certain point.

03:25 - 12.433 So that is what we would ask this court to just have remain in place.

03:25 - 17.438 This is this is a this is again a very interesting exercise because.

03:25 - 20.684 I'm, I'm struggling

03:25 - 24.554 with the principle that they want it, that the other side

03:25 - 27.581 wants to start articulating the principle that you want us to articulate.

03:25 - 30.017 You seem to be advocating for

03:25 - 32.663 a presumption

03:25 - 36.257 that a non owner does not have lawful possession.

03:25 - 40.828 They seem to be arguing for a presumption that any driver of a vehicle

03:25 - 43.540 is presumed to have lawful possession.

03:25 - 47.134 Both of you were advocating for some form of a presumption.

03:25 - 50.805 I'm,

03:25 - 55.076 I'm not sure I see this presumption in our law on either side.

03:25 - 58.212 I think. I think you have a burden to show.

03:25 - 01.825 And again, the idea that a police officer would be on the scene and go, oh,

03:26 - 02.926 you're not the owner.

03:26 - 05.162 I'm not even going to think about reasonable suspicion.

03:26 - 06.596 I'm just going to search your car.

03:26 - 08.565 We don't have that here. Police officer.

03:26 - 11.101 You know, the police officers had a factual,

03:26 - 13.070 you know, factual basis that hasn't been necessarily

03:26 - 15.806 judged by the Superior Court yet. We're not prejudging it.

03:26 - 18.809 But it wasn't like this was like, there's there's this grand thing

03:26 - 20.844 that's going to happen that all of a sudden police officers

03:26 - 22.679 are going to make this decision on the fly and decide

03:26 - 25.349 to just search every car where there's a non-owner.

03:26 - 30.010 But getting back to my question, are these presumptions that both

03:26 - 33.047 you are arguing ingrained in the law,

03:26 - 37.094 or are you saying there's the suppression aspect of it,

03:26 - 40.121 which goes to showing that the search was valid,

03:26 - 44.801 but that the proponent of a right, if they are going to assert

03:26 - 47.771 a constitutional right, they are the proponent and they have to

03:26 - 50.798 ultimately bear the burden of proving that the right attached.

03:26 - 53.210 Isn't that essentially what you're asking for?

03:26 - 55.236 Yes, Justice Robson, it is. Okay.

03:26 - 00.350 I, I guess if there

03:27 - 04.287 are no other questions, I will rest upon my brief.

03:27 - 08.225 And if I just have a moment to conclude, Chief Justice, that

03:27 - 11.252 I might just have a moment to conclude if there are no other questions.

03:27 - 24.031 What the Commonwealth is asking this court for

03:27 - 27.177 is to keep in place

03:27 - 31.071 the very premise that an individual who is asserting a privacy interest

03:27 - 35.576 here in a car, but really wherever it may come up, which is homes,

03:27 - 39.756 computers, apartments

03:27 - 42.726 that if you want to have

03:27 - 45.753 allege to the court that that search or seizure was illegal,

03:27 - 48.498 that it is there is a portion of that burden

03:27 - 51.525 that is on you as the individual asserting the privacy right.

03:27 - 56.740 It's not a very hard burden to me.

03:27 - 01.469 Could be as simple as someone bringing an affidavit, bringing that owner to court,

03:28 - 05.248 telling them, telling the officer I have permission or authority to use it.

03:28 - 06.683 And then we're in the ballgame

03:28 - 10.110 of letting the court decide whether that permission was reasonable.

03:28 - 13.223 And that is where we would ask this court to affirm the Superior Court

03:28 - 16.250 on that basis. Thank you. Thank you both.

03:28 - 19.663 Coming up to the podium is the matter of First Energy

03:28 - 23.724 Pennsylvania Electric Company versus Pennsylvania Public Utility Commission

03:28 - 29.430 across peel, followed by Verizon Pennsylvania LLC and Verizon North LLC.

03:28 - 33.176 This is an appeal filed by the Pennsylvania Public Utility Commission

03:28 - 37.147 and concerns the unbound Commonwealth Court's interpretation of a Pennsylvania.

03:28 - 41.909 Public Utility Commission refund regulation and issue of first Impression.

03:28 - 46.389 The question is whether a PUC refund award must be consistent

03:28 - 48.625 with the applicable statute of limitations.

03:28 - 51.461 When the PUC has found that a refund is warranted

03:28 - 55.589 because an electric utility charged and collected what the PUC argues

03:28 - 58.826 are unlawfully high pole attachment rates.

03:28 - 01.238 Verizon filed the online complaint

03:29 - 04.865 at the Federal Communications Commission in November 2019,

03:29 - 08.936 after First Energy significantly overcharged Verizon for years

03:29 - 12.406 for use of excess space on First Energy's utility poles

03:29 - 16.510 for wires and other facilities used to provide communication services.

03:29 - 20.848 In its complaint, Verizon sought the just and reasonable pole attachment rates.

03:29 - 25.362 First energy is required to charge Verizon and refunds of amounts first energy

03:29 - 28.355 collected during the applicable statute of limitations period.

03:29 - 31.468 After the parties brief the case at the FCC.

03:29 - 36.106 New PUC regulations took effect in March 2020 and transferred jurisdiction

03:29 - 39.833 over Penn, Pennsylvania pole attachment disputes to the PUC.

03:29 - 42.245 Pole attachment rates are charges.

03:29 - 46.349 Electric utilities charge communications providers for use of excess space

03:29 - 47.417 on their poles

03:29 - 51.488 to ensure electric utilities do not charge monopoly rents for use of excess space

03:29 - 52.390 on their poles.

03:29 - 55.950 Federal and Pennsylvania law require certain electric utilities

03:29 - 59.286 to charge just and reasonable pole attachment rates.

03:30 - 04.100 Verizon argues that the Commonwealth Court legally aired when it gave the PUC

03:30 - 07.637 unfettered discretion to select a refund period shorter

03:30 - 10.664 than that required by the applicable statute of limitations,

03:30 - 14.702 or in failing to vacate the refund period as arbitrary and capricious.

03:30 - 18.415 The Commonwealth Court rejected Verizon's arguments that the PUC aired

03:30 - 22.285 when it selected November 2019 as the period

03:30 - 23.954 for refunds for pole attachment rates.

03:30 - 26.022 First energy collected from Verizon.

03:30 - 26.857 The Commonwealth Court

03:30 - 29.859 rejected Verizon's arguments that the PC error when it selected

03:30 - 33.964 November 20th, 2019 as the period for refunds for the pole attachment rates.

03:30 - 36.166 First energy collected from Verizon.

03:30 - 39.569 The Commonwealth Court found that the Public Utility Code empowers the PUC

03:30 - 43.330 to issue refunds within four years prior to the date of filing of the complaint.

03:30 - 46.376 First, Entergy argued that the general breach of contract

03:30 - 48.445 principles, such as statute limitations,

03:30 - 51.605 do not apply in the context of PUC refund regulations.

03:30 - 55.285 The PUC argues that the Public Utility Code grants the PUC authority

03:30 - 59.213 to determine an appropriate refund period, and the PUC carefully considered

03:30 - 03.484 and selected a reasonable refund period consistent with the public utility code.

03:31 - 05.862 And the PUC is on regulations.

03:31 - 06.863 Let's watch and listen.

03:31 - 09.799 And the argument in First Energy Pennsylvania Electric Company

03:31 - 11.592 v Pennsylvania Public Utility Commission.

03:31 - 14.171 Late in the

03:31 - 17.197 day for a pull attachment case, I guess, right?

03:31 - 19.175 Yeah, we've been eagerly never guess.

03:31 - 21.811 I'll bet.

03:31 - 23.713 The room is nearly empty.

03:31 - 27.941 Had we been sleeping, this one would have woken us up.

03:31 - 28.552 That's right.

03:31 - 31.755 It's our view,

03:31 - 35.925 Your Honor, that the commission committed a fundamental error of law in this case.

03:31 - 38.328 Use the. I'm sorry.

03:31 - 39.729 My name is David McGregor.

03:31 - 40.997 He honored. Posted.

03:31 - 44.024 Yes. And here I have esteemed co-counsel,

03:31 - 47.170 Jim Cutts.

03:31 - 49.673 Thank you. My apologies. No worries.

03:31 - 52.609 The commission, made a mistake here,

03:31 - 56.379 in our view, when they determined that our existing rates,

03:31 - 59.473 that had been in effect for many years, weren't just an unreasonable

03:32 - 05.112 based solely on the fact that the contracts

03:32 - 10.617 which contain these rates were renewed in 2019.

03:32 - 13.797 You look at

03:32 - 18.168 pages 24 to 30, 42 of the Commission's

03:32 - 21.895 decision that contains their entire discussion

03:32 - 26.633 about whether our existing rates are unjust and unreasonable.

03:32 - 30.304 You will find no reference to cost of service

03:32 - 35.075 in that portion of the Commission's order, where it made the relevant findings.

03:32 - 38.679 Cost of service is the polestar

03:32 - 41.291 of Pennsylvania rate regulation.

03:32 - 44.318 Unintended,

03:32 - 46.129 where do they had to go to the Lloyd

03:32 - 49.156 Ford get that Polestar from?

03:32 - 52.102 I don't know if polestar's for the Lloyd case

03:32 - 57.741 really is a summary over 100 years of, judicial precedent

03:32 - 01.802 that rates in Pennsylvania are determined on cost of service.

03:33 - 04.848 The code doesn't say that the that the cost of the service. No.

03:33 - 05.516 That's correct.

03:33 - 09.352 It's a judicial interpretation of the public utility code.

03:33 - 13.923 But it sounds like, what justice we heard argument recently in a game

03:33 - 17.494 code case, and the whole doctrine rested on Justice Holmes.

03:33 - 19.963 Just saying it's as old as the common law.

03:33 - 24.158 So you could just say this, Polestar is just as old as the common law.

03:33 - 25.102 Yes.

03:33 - 27.427 The Public Utility Commission was created and,

03:33 - 30.740 Public Service Commission in 1913.

03:33 - 35.111 And, the cases we fight, cases going back to 1917

03:33 - 38.739 that contained essentially the same principles and holding as Lloyd.

03:33 - 43.419 It's a bedrock common law of public utility.

03:33 - 46.446 What,

03:33 - 51.928 Counsel, while you're searching your notes, doesn't the

03:33 - 55.222 I telecom rate methodology,

03:33 - 58.725 doesn't that build in the,

03:33 - 01.371 increased cost of service

03:34 - 05.365 related to pole attachments? Yes.

03:34 - 08.645 So the commission made that suffice?

03:34 - 09.213 Yeah.

03:34 - 12.182 The commission made three findings in this case.

03:34 - 16.376 It first found our existing rates to be unjust and reasonable.

03:34 - 21.515 Based solely on the contract renewal and ignoring cost of service.

03:34 - 26.796 It then, under the regulations, had a determination to make as to

03:34 - 29.933 whether it would adopt the so-called old

03:34 - 32.960 telecom rate or the new telecom rate.

03:34 - 36.105 Both of those rates were cost rates.

03:34 - 40.300 One new telecom rate is a marginal cost rate of the old.

03:34 - 43.213 Our rates are fully allocated cost rates.

03:34 - 46.216 The old telecom rates are somewhere in between.

03:34 - 51.154 But the commission then made it separate determination based on the evidence that.

03:34 - 55.425 Verizon should get the new telecom rate and not the old telecom rate.

03:34 - 59.462 So who didn't get awarded refunds based on the difference

03:34 - 03.523 between, the new telecom rate and the existing rates.

03:35 - 07.594 Council who who decided the new telecom rates would entity.

03:35 - 11.374 The new telecom rate as

03:35 - 15.068 part of a rate formula adopted by the FCC.

03:35 - 15.446 Correct.

03:35 - 19.215 And it was incorporated by reference into the Commission's regulations.

03:35 - 20.084 And that was determined

03:35 - 24.053 through the through Congress to be a just and reasonable rate.

03:35 - 24.922 Is that correct?

03:35 - 27.948 No. It was the determined by the FCC.

03:35 - 29.592 The FCC? Yeah.

03:35 - 32.495 So is it your position that the new telecom rate

03:35 - 34.364 should not have been adopted by the PUC,

03:35 - 36.532 and that the PUC should make its own determination

03:35 - 38.034 regarding what is just and reasonable?

03:35 - 41.094 Yes, that's part of that is my argument, Your Honor, in part.

03:35 - 47.076 So the reason I'm emphasizing these three separate points is

03:35 - 51.438 when you determine that the existing rates are unjust and unreasonable.

03:35 - 54.308 That's a predicate finding for refunds

03:35 - 56.253 under the statute.

03:35 - 00.990 Section 1312 of the Public Utility Code says if the Commission

03:36 - 04.985 finds that an existing rate is unjust and unreasonable,

03:36 - 08.865 it may order refunds up to four years,

03:36 - 13.293 with discretion, in terms of amount. So.

03:36 - 17.473 That determination

03:36 - 20.467 was made without any regard to cost of service.

03:36 - 24.814 The Commission then did later adopt a cost to service

03:36 - 28.342 rate, a marginal rate that's much lower than the existing rate.

03:36 - 32.055 But in under another

03:36 - 35.816 bedrock principle of of Pennsylvania public utility law

03:36 - 39.553 is that rates are established within a zone of reasonableness,

03:36 - 43.466 even if the new telecom rate

03:36 - 47.561 were just unreasonable and properly adopted by the Commission.

03:36 - 53.367 It's does not mean that our existing rates are unjust and unreasonable.

03:36 - 56.803 There can be more than one just and reasonable rate.

03:36 - 00.607 So we have not challenged on the appeal here.

03:37 - 04.177 The adoption of a new telecom rate, a marginal cost rate

03:37 - 06.456 as opposed to a full cost rate.

03:37 - 11.018 But I mean, if you think about it, a marginal cost rate

03:37 - 14.931 is much, much lower than a full cost rate because you're only measuring

03:37 - 18.825 the marginal cost or the incremental cost of attaching to the pole

03:37 - 20.527 rather than the full cost.

03:37 - 22.039 If you

03:37 - 25.065 were a if you were to adopt a marginal cost standard,

03:37 - 28.235 if I could just finish this marginal cost standard,

03:37 - 31.972 every rate in the Commonwealth would be unjust and unreasonable.

03:37 - 35.318 All the rates for public utility service are based on fully

03:37 - 39.046 allocated cost, not the new telecom marginal cost rate.

03:37 - 44.918 So just because the new telecom rate was adopted in this proceeding,

03:37 - 50.166 and just because it may be just unreasonable, we disagree.

03:37 - 51.200 But if it is,

03:37 - 54.661 does it mean that our existing rates are unjust and unreasonable

03:37 - 57.907 and it doesn't mean we should be paying any refunds in this case?

03:37 - 00.910 I'm sorry. No. That's okay. I mean,

03:38 - 03.937 as I view, your appeal

03:38 - 08.108 and correct me if I'm wrong, you seem to be challenging

03:38 - 11.654 the turnkey adoption

03:38 - 15.749 of the FCC regulations in this context.

03:38 - 19.586 You're just challenging the authority of the PUC

03:38 - 22.989 to rely on the FCC.

03:38 - 26.636 Methodology?

03:38 - 28.871 Yes, that's correct, Your Honor.

03:38 - 31.441 So why are you breaking this down into.

03:38 - 35.912 We're not challenging the new methodology versus the old methodology, etc., etc..

03:38 - 38.915 I mean, you're just saying that what happened here

03:38 - 42.109 is just incompatible with the public utility code.

03:38 - 44.554 And I have two separate arguments.

03:38 - 46.823 That's all I can turn to this argument.

03:38 - 49.850 And I would start by saying,

03:38 - 52.728 this is a case of reverse preemption.

03:38 - 56.690 There's no delegated federal authority here for many years

03:38 - 01.828 from the inception of the industries until I think 2012,