High court: 2008 law requires limits on multiple carbon sources

Printed from: https://newbostonpost.com/2016/05/18/high-court-2008-law-requires-limits-on-multiple-carbon-sources/

STATE HOUSE — A unanimous Supreme Judicial Court ruling handed down on Tuesday affirms the state’s obligations under a 2008 global warming law and orders state government to create and implement regulations that apply to multiple carbon sources to meet its emission reduction mandates.

Vacating a Superior Court judge’s ruling, the SJC ruled that Department of Environmental Protection (DEP) regulations do not fulfill the specific requirements of the Global Warming Solutions Act of 2008.

The ruling requires the department to promulgate regulations “that address multiple sources of 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 emission limits for each year, and set limits that decline on an annual basis.”

“This is a historic day,” Jenny Rushlow, the Conservation Law Foundation’s lead attorney on the case, said in a statement. “Today our highest court declared clearly and unequivocally that our leaders can no longer sit on their hands while Massachusetts communities are put at risk from the effects of climate change. Thanks to this landmark decision, our role as a national leader in battling climate change has only been stalled but not sacrificed. Now, with action from DEP, we can get back on track and ensure that the health of our families and future generations is always a top priority.”

In an interview with the News Service, Rushlow said the department has discretion over which carbon sources to regulate, but not whether to regulate. The building, heating and transportation sectors are areas where emission reductions could be achieved, she said.

“If DEP is looking at where emissions are coming from it would be well served to look at the transportation sector,” Rushlow said, noting that vehicles are a major source of emissions.

The ruling in Kain et al. v. Massachusetts Department of Environmental Protection was written by Justice Robert Cordy, who wrote that the case asked the court to examine whether DEP had fulfilled its mandate under the 2008 law that required regulations to be issued by Jan. 1, 2012, to take effect Jan. 1, 2013 and to expire on Dec. 31, 2020.

When the DEP failed to take action by the deadline, residents submitted rules to the department seeking the issuance of regulations and the department, after a hearing in June 2013, issued a statement concluding it had complied with the requirements of the law, citing a regional cap and trade program to reduce power plant emissions, efforts to limit gas leaks, and a low-emission vehicle program.

Plaintiffs went to Superior Court seeking relief in 2014 and a judge in March 2015 ruled for the department, prompting the appeal to the Supreme Judicial Court.

In his opinion, Cordy wrote that the law’s “unambiguous language…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.”

The court ruled that the gas leaks, Regional Greenhouse Gas Initiative, and low-emission vehicle regulations, while important to overall greenhouse gas reduction efforts, “fall short of complying with the requirements . . . 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.”

In another part of the decision, Cordy wrote that “we reject the department’s interpretation of the provision, which would tend to undermine the act’s central purpose of reducing emissions in the Commonwealth.”

The court concluded that the DEP is “well equipped to say what actual reductions in emissions sources and source categories can be achieved because it has already inventoried emissions from every source and source category of emissions in the Commonwealth . . . ”

“With this decision, the administration can now get down to business, reducing greenhouse gas emissions in very specific ways. As a consumer group, we’re confident that the next steps taken will be cost-effective and transparent,” Eugenia Gibbons, clean energy program director at Massachusetts Energy Consumer Alliance, said in a statement.

DEP officials did not respond to a request for comment on the ruling.

The ruling comes as lawmakers continue crafting an energy bill, facing pressure to boost renewable energy supplies while holding down consumer costs and ensuring a reliable power supply as coal plants go offline and Plymouth Nuclear Power Station plans to close in three years.

During remarks in Boston at a Mothers Out Front luncheon, Attorney General Maura Healey highlighted her opposition to expanding natural gas capacity and called for investments in land-based and offshore wind energy production.

“Massachusetts has successfully encouraged more clean generation by requiring our utilities – through legislation – to request proposals and enter into long term contracts to purchase clean energy,” Healey said, according to her prepared remarks. “And we’ve procured over 450 megawatts of renewable generation with long term contracts. Now, the Legislature is considering proposals that would permit utilities to enter into long term contracts for much larger amounts of energy and expand the eligible resources to include out-of-state hydro. As the Massachusetts ratepayer advocate, I need to ensure that we procure this energy in a way that protects ratepayers and achieves our climate goals. I’m confident we can do that if we ensure right-sized proposals, competitive pricing, strict verification of environmental attributes, and a transparent process.”

Healey called for a task force “to figure out the next generation of energy efficiency” and said her office would work with the Baker administration in the coming months “to design a smart, flexible incentive program that will continue to help advance solar development in our state.”

The attorney general also said she met in March in New York with some of her counterparts and with former Vice President Al Gore and announced at that time an investigation of Exxon Mobil.

Healey said Tuesday that she had reviewed Exxon documents made public last fall and said the documents “show that Exxon, and maybe others, may not have told the whole story, leading many to doubt whether climate change is real and to misunderstand the catastrophic nature of its impacts.”

The plaintiffs in the DEP case were represented by CLF, Columbia Environmental Law Clinic, and Sugarman, Rogers, Barshak & Cohen, P.C.

— Written by Michael P. Norton

Copyright State House News Service