The Global Warming Solutions Act Requires MassDEP to Promulgate Declining Annual GHG Emissions Limits for Multiple Sources: Yikes!

Posted on May 23, 2016 by Seth Jaffe

On Tuesday, the Supreme Judicial Court of Massachusetts (SJC) ruled that MassDEP had violated the Global Warming Solutions Act progress-on-2020-planby failing

"To promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or categories of sources, set emissions limits for each year, and set limits that decline on an annual basis."

Phew.

The SJC gets the final word, so I won’t spend much time explaining why the SJC got it wrong, though I will note that to suggest that the legislature’s use of the phrase “desired level” of GHG emissions unambiguously requires MassDEP to establish hard targets was at best overenthusiastic.

The bigger question at this point is what the decision means.  First, it’s clear that MassDEP must establish hard declining emissions limits for more than one, but less than all, categories of GHG emitting sources.

Second, MassDEP must promulgate regulations that limit total emissions – not emission rates.

Third, the regulations must truly control Massachusetts sources.  The SJC specifically found that RGGI doesn’t satisfy the GWSA requirement, in part because Massachusetts sources can purchase allowances from out of state facilities.

But where does this leave MassDEP?  In a deep hole, for sure.  Unless it wants to ditch RGGI, it can’t regulate power generation, because the type of program that the SJC said is required would simply be incompatible with RGGI.

How about mobile sources?  They are the largest growing source of GHG emissions.  Unfortunately, we come back to the SJC’s injunction that MassDEP must regulate total emissions, not emission rates.  You tell me how MassDEP is going to issue regulations setting a cap on mobile source emissions.

The only obvious candidates I see are buildings and industrial sources other than power generation.

I don’t envy MassDEP – and the nature of the task only emphasizes the extent of the SJC’s overreach here – but I said I wouldn’t get into that.