Gov. Wolf’s carbon-pricing plan stalled by legal disagreement

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Covering Pennsylvania politics, government & scandals for @AP. The wicked flee when none pursueth. @Colorado native. As honest as a Denver man can be.
Rachel McDevitt

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I report on energy and the environment for StateImpact Pennsylvania at WITF.

My work focuses on responses and solutions to climate change in the state legislature and communities around the state. I trace my interest in these issues back to my time as a Girl Scout and this episode of Rocko’s Modern Life.

I look forward to winter just for the chance to ski a few times each season. I try to keep myself from doom-scrolling on my phone by keeping my hands busy knitting and learning to play the piano.

I grew up in Cambria County, Pa. and graduated from Temple University. I started at WITF just after Christmas in 2014.

Matt Rourke / AP Photo

FILE PHOTO: Shown is the Pennsylvania Capitol building Tuesday, Dec. 8, 2015, at the state Capitol in Harrisburg, Pa.

December 13, 2021 | 5:42 PM

Democratic Gov. Tom Wolf’s administration wants the centerpiece of his plan to fight climate change to take effect immediately, but it is being held up by an agency that answers to the Republican-controlled Legislature.

On Friday, Wolf’s secretary of environmental protection, Patrick McDonnell, wrote to the Legislative Reference Bureau to insist that it publish Wolf’s regulation to impose a price on carbon dioxide emissions from fossil fuel-fired power plants.

Publishing it in the Pennsylvania Bulletin would mean the regulation takes immediate effect, and would make Pennsylvania the first major fossil fuel state to adopt a carbon pricing policy. The bulletin is published weekly as an official record of actions by government agencies.

However, Republicans who control the Legislature oppose the regulation and argue that they have more time, months even, to take votes on it. McDonnell wrote that the legislative review period has expired and that Republicans’ interpretation of the law is wrong.

“It is a violation of the separation of powers doctrine, unnecessarily impeding the executive branch’s ability to execute its rulemaking authority,” McDonnell wrote.

House and Senate leaders, however, did not back down Monday from their interpretation of the law and its timeline.

The Wolf Administration and legislative Republicans disagree as to how to read the Regulatory Review Act, which says that “the Senate and the House of Representatives shall each have 30 calendar days or ten legislative days, whichever is longer” to adopt a disapproval resolution for a given regulation from the day the measure enters a chamber.

The Wolf Administration says the review period for both chambers is concurrent from the day a resolution enters either chamber.

Climate change and Pennsylvania

There’s overwhelming scientific evidence that human activity is warming Earth at an unprecedented rate. It’s already responsible for extreme weather, rising sea levels, and more severe droughts worldwide. Pennsylvania is on track for more intense heat waves and stronger storms in coming years, the Department of Environmental Protection says.

Scientists stress that rapid action is crucial to avoid the worst effects. Pa.’s most recent Climate Action Plan calls for an 80% reduction of greenhouse gas emissions by 2050, compared to 2005 levels.

Doing that will require hard choices by the nation’s fourth-largest carbon emitter: Pennsylvania must figure out how to cut emissions while planning for the future of people and communities that rely on the fossil fuel industry.

The Legislative Reference Bureau is siding with Republicans’ reading that each chamber has 30 calendar days or ten legislative days consecutively to vote on the disapproval resolution.

By that interpretation, the House won’t meet its deadline until January 2022, when it returns from a winter recess. The Senate approved the resolution Oct. 27. The next session day for the House was Nov. 8, which started the clock in that chamber. Counting Nov. 8, the House only had 9 scheduled legislative days remaining in 2021.

In a letter to Attorney General Josh Shapiro asking him to reject the rule in his official capacity, Republican leaders in the House and Senate said they expect the legislative review to last many months.

Former DEP Secretary David Hess noted the legislature’s schedule for regulatory review has not been tested in the courts. The Natural Resources Defense Council argued in a recent blog post that the consecutive time frames are legally incorrect.

Lawmakers ultimately cannot block the regulation unless they are able to muster a two-thirds majority, which they have been unable to do.

The resolution is subject to the governor’s veto. If vetoed, the law says the Senate and House of Representatives shall each have 30 calendar days or ten legislative days, whichever is longer, to override the veto. If the attempt fails, the regulation is deemed approved.

The plan has won approval from regulatory bodies and signoff by the governor’s office of general counsel and the attorney general’s office under reviews for form and legality. It still could face a legal challenge in the courts from opponents, who contend that it is an illegal use of regulatory authority.

The regulation allows Pennsylvania to join a multistate consortium, the Regional Greenhouse Gas Initiative, which sets a price and declining limits on carbon dioxide emissions from power plants.

Under the cap-and-trade program, dozens of power plants fueled by coal, oil and natural gas would be forced to buy hundreds of millions of dollars in credits in the coming years that the state could then spend on efforts to improve energy efficiency and build clean energy projects.

Wolf’s administration has said the policy will deliver significant improvements to the state’s environment, public health and economy.

Wolf’s administration had initially sought support in the Republican-controlled Legislature and, failing to get traction there, pursued the matter through regulation.

Opponents have included coal- and natural gas-related interests who would pay more to operate, industrial and business groups that fear higher electricity bills and labor unions whose workers maintain power plants, build gas pipelines and mine coal, fearing a loss of jobs.

Republicans contend the regulation broadly will make energy more expensive.

A House Republican spokesperson said the administration is trying to “inappropriately further their radical agenda of making it less affordable for Pennsylvanians to heat their homes and put gas in their cars and permanently ending blue collar energy sector jobs.”

The Wolf administration, however, said its modeling shows that prices will rise initially by 1%, but then drop to lower than “business as usual” prices by 2030, delivering savings to electricity users.

Its effectiveness could depend on where emissions caps are set and whether money from the emissions credits are wisely spent on clean energy and energy efficiency programs.

The plan has support from environmental advocacy groups, backers of higher-efficiency natural gas plants and labor unions involved in renewable energy projects.

In theory, electricity from solar, wind and nuclear power generators would become more cost competitive in electricity markets, and the hope for better prices motivated the Ohio-based owner of the nuclear-powered Beaver Valley Power Station to put off plans to close the plant.