Massachusetts high court faults state department’s actions on GHG emissions

The Massachusetts Supreme Judicial Court on May 17 ruled that the state Department of Environmental Protection failed a statutory mandate that requires it to “promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.”

By the terms of the enabling legislation, the 2008 Global Warming Solutions Act, these regulations were to be issued by Jan. 1, 2012, to take effect on Jan. 1, 2013, and to expire on Dec. 31, 2020. Said the high court ruling: “The department failed to take action by the statutory deadline, and in November, 2012, a group of residents submitted a rulemaking petition to the department seeking the issuance of regulations pursuant to § 3 (d) to limit greenhouse gas emissions in the Commonwealth. The department held a public hearing on June 13, 2013, to consider the petition.

“Shortly thereafter, it issued a written statement addressing the petitioners’ concerns and concluding that it had complied with the requirements of the act, including those set forth in § 3 (d). The statement also referenced specific regulatory schemes that the department had established to reduce greenhouse gases, including prescribed limits on sulfur hexafluoride leaks, a regional cap and trade market to manage carbon dioxide emissions known as the Regional Greenhouse Gas Initiative (RGGI), and a low emission vehicle (LEV) program aimed at reducing automobile emissions. The department further stated that these initiatives, individually and in combination, fulfilled the mandate of § 3 (d). No further action was taken by the department at that time.”

In August 2014, the citizen plaintiffs filed a complaint in the Superior Court seeking declaratory relief, or in the alternative, a writ of mandamus, on the grounds that the department had failed to fulfil its statutory mandate under § 3 (d).  The department again took the position that the sulfur hexafluoride, RGGI, and LEV regulations satisfy the mandate of § 3 (d). Following a hearing in March 2015, the judge dismissed the plaintiffs’ mandamus claim and entered judgment in the department’s favor based on his findings that the three regulatory initiatives cited by the department substantially complied with the requirements of § 3 (d).

The plaintiffs timely appealed to the high court, which said in the May 17 ruling: “For the reasons discussed herein, we conclude that the unambiguous language of § 3 (d) requires the department to promulgate regulations that establish volumetric limits on multiple greenhouse gas emissions sources, expressed in carbon dioxide equivalents, and that such limits must decline on an annual basis. We further conclude that the sulfur hexafluoride, RGGI, and LEV regulations fall short of complying with the requirements of § 3 (d), because they fail to ensure the type of mass-based reductions in greenhouse gases across the sources or categories of sources regulated under each of the programs, as intended by the Legislature. Accordingly, we reverse the judgment of the Superior Court.”

The question whether § 3 (d) requires the department to promulgate regulations establishing binding limits on emissions or merely aspirational targets is central to the court’s determination of whether the agency has met its obligations under the statute. The plaintiffs contend that the phrase “emission limits” requires the department to issue regulations that establish binding caps on sources or categories of sources of emissions; the department argues that the phrase, as used in § 3 (d), requires it only to promulgate regulations that establish aspirational goals or unenforceable targets because the phrase is modified by the phrase “desired level.”

The high court said the plain language of the statute requires the department to set actual limits for sources or categories of sources that emit greenhouse gases through the promulgation of regulations.

On the matter of the RGI, the court wrote: “We conclude that although the RGGI program and amendments thereto are very important to the over-all regional scheme of reducing carbon dioxide emissions, they do not qualify as a regulation under § 3 (d). The RGGI was established under G. L. c. 21A, § 22, a statute entirely separate from the act.”

The court noted that if a Massachusetts power plant needed to purchase allowances at the quarterly RGGI auction in order to achieve compliance, and the allowances in the Massachusetts CO2 base budget were exhausted, the Massachusetts power plant could purchase allowances from another RGGI state. “Because of this feature, there is no way to ensure mass-based reductions in carbon dioxide emissions from power plants in the Commonwealth that participate in the RGGI,” the court ruled. “Thus, like the sulfur hexafluoride regulations, the RGGI may contribute to reductions in emissions, but does not comport with the specific requirements of § 3 (d).”

About Barry Cassell 20414 Articles
Barry Cassell is Chief Analyst for GenerationHub covering coal and emission controls issues, projects and policy. He has covered the coal and power generation industry for more than 24 years, beginning in November 2011 at GenerationHub and prior to that as editor of SNL Energy’s Coal Report. He was formerly with Coal Outlook for 15 years as the publication’s editor and contributing writer, and prior to that he was editor of Coal & Synfuels Technology and associate editor of The Energy Report. He has a bachelor’s degree from Central Michigan University.