MCINTOSH V. PENNSYLVANIA DEPARTMENT OF ENVIRONMENTAL PROTECTION
On December 18, 2025, 13 youth—ages 2 months to 21 years old—filed an appeal with the Pennsylvania Environmental Hearing Board (EHB) challenging the Pennsylvania Department of Environmental Protection (DEP)’s issuance of a permit for the Homer City Redevelopment Project. The permit seeks to construct what would become the nation’s largest gas-fired power plant on the site of what once was Pennsylvania’s largest coal-fired power plant, solely to power a 3,200-acre data center. Represented by Our Children’s Trust and co-counsel Jason Asbell of the Pennsylvania law firm of Gibbel Kraybill & Hess, the youth are challenging the permit because it violates their fundamental constitutional rights under Pennsylvania’s Environmental Rights Amendment, Article I, Section 27, and their rights to life, health, and safety under Article I, Section 1.
The plant would emit over 17.5 million tons of greenhouse gases annually, worsening the climate crisis and threatening the health, safety, and lives of these young people.
McIntosh v. Department of Environmental Protection argues that DEP’s permit violates the Pennsylvania Environmental Rights Amendment and the youth’s fundamental constitutional rights to life, health, and safety. By authorizing unnecessary climate pollution despite readily available and cheaper clean, renewable alternatives, the permit endangers children, communities, and the Commonwealth’s constitutionally protected public trust resources.
Through this appeal, these young Pennsylvanians are asking the courts to vacate the permit and ensure the state fulfills its constitutional duty to protect public trust resources, secure a safe climate, and safeguard the wellbeing of current and future generations.
Why the Project is Harmful to Youth
The proposed gas-fired power plant would emit approximately 17.5 million tons of greenhouse gases per year. That’s more than the total emissions from some U.S. states. These GHG emissions would significantly increase Pennsylvania’s contribution to climate change and worsen the already-dangerous climate crisis that is harming the Commonwealth and its young citizens.
Today, young Pennsylvanians are experiencing climate impacts, including heatwaves, floods, worsening air quality, droughts, declining winter snowpack and more. Every ton of carbon dioxide from the Homer City project will worsen these harms, and threaten the Appellants’ health, safety, and futures.
Pennsylvania can meet all energy needs, including the new demand from large data centers, with clean, renewable alternatives, making this fossil fuel project avoidable and unnecessary. Building a plant this large to power a single 3,200-acre data center puts corporate profit above the health of young people and communities.
What the Appellants Are Asking the Court to Do
The Appellants are asking the Court to:
Vacate the Homer City permit to prevent construction and operation of the Facility.
Ensure Pennsylvania’s government fulfills its constitutional duty to protect youth rights and public trust resources.
The Homer City permit violates the constitutional rights of youth under the Pennsylvania Environmental Rights Amendment, which recognizes that all Pennsylvanians “have a right to clean air, pure water, and to the preservation of the natural, scenic, esthetic, values of the environment.” The Environmental Rights Amendment also establishes Pennsylvania’s “public natural resources” as “common property of all the people” including future generations, and requires the Commonwealth, as trustee of these resources, to “conserve and maintain them” for the public’s benefit.
McIntosh v. Department of Environmental Protection is a direct request to the EHB for action stopping this unconstitutional permit.
Previous Action in Pennsylvania
Starting in May of 2011, youth filed two petitions for rulemaking with the Pennsylvania Department of Environmental Protection and other state agencies asking them to adopt rules to reduce the state's carbon dioxide emissions by 6% per year starting in 2013, in line with our nation's best science on climate recovery. In August of 2014, the Pennsylvania Environmental Quality Board (EQB) voted not to move forward with 20-year-old Ashley Funk’s climate change petition.
On September 16, 2015, Ashley and her fellow youth plaintiffs filed a constitutional public trust climate change lawsuit in the Commonwealth Court of Pennsylvania against Governor Tom Wolf and six state agencies, including the DEP and EQB. On March 28, 2017, the Supreme Court of Pennsylvania, in a one sentence decision, affirmed the Commonwealth Court’s order dismissing the constitutional public trust case filed by the youth plaintiffs. Following in her mother’s footsteps, Ashley’s young daughter is one of the appellants challenging DEP’s issuance of permit for the Homer City Redevelopment Project.
Current Status:
On December 18, 2025, 13 youth plaintiff filed their notice of appeal with the Pennsylvania Environmental Hearing Board, McIntosh v. Department of Environmental Protection, challenging the Pennsylvania Department of Environmental Protection’s (DEP) issuance of the air quality plan approval permit for the Homer City Redevelopment Project gas power plant. Youth now await a response from the EHB establishing a timeline for the permit appeal.