Commonwealth Court pauses Pennsylvania’s effort to enact climate rule

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.

Tom Downing / WITF

The Pennsylvania state Capitol is seen in this file photo.

April 5, 2022 | 6:16 PM

Updated: 2022-04-05 19:46:54

A Pennsylvania court is holding up the regulation that would let the state join the Regional Greenhouse Gas Initiative, the main piece of Gov. Tom Wolf’s climate plan.

Commonwealth Court issued a stay of the rule on Tuesday evening, pending further order of the court. The order didn’t include any explanation. Republican lawmakers who oppose joining RGGI had asked the court to prevent the rule from taking effect until all legal questions were resolved.

The agency tasked with publishing new rules had planned to publish the regulation on Saturday, following a failed veto override effort in the state Senate that aimed to stop the rule.

Publication would have made the rule official, positioning Pennsylvania to become the first major fossil fuel-producing state to put a price on carbon emissions.

Publication in the Pennsylvania Bulletin is the final regulatory hurdle for RGGI.

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Those following the process expect more to legal challenges to come.

Under the cap-and-trade program with 11 other states, power plants must pay for each ton of carbon dioxide they emit, making dirtier sources of power less competitive with cleaner sources. States can use the money raised to fund clean energy and energy efficiency programs.

Mark Szybist, senior attorney with the Natural Resources Defense Council, said he expects lawsuits against the program will be filed next week.

“I think the lawsuits are already written and they’re all ready to be filed,” he said, adding it’s just a matter of who will file, in which court, and what they will claim.

Power plants and some labor unions may claim the RGGI rule would harm them. Republican lawmakers have argued the rule is unconstitutional, because they claim the money raised by the program amounts to a tax, which only the legislature could enact.

“The fight against the RGGI carbon tax will continue in court,” said Senate Majority Leader Sen. Kim Ward (R-Westmoreland) in a statement. “Stopping Pennsylvania from joining RGGI would have helped build upon a foundation started in the last budget session to position our Commonwealth’s economy for prosperity by helping to unleash Pennsylvanians greatest energy assets while reducing energy and consumer prices.”

There are measures pending in the legislature that would prohibit the executive branch from regulating carbon pollution. If one passes, it would keep the state from joining RGGI. But Wolf has vetoed previous efforts, and lawmakers haven’t had the votes to overrule him.

On Monday, the state Senate failed to override Gov. Tom Wolf’s veto on a resolution that would have stopped the RGGI rule.

Lawmakers voted 32-17. That’s one vote short of the two-thirds majority needed to override a veto.

Pa. Republican lawmakers and the U.S. Capitol attack
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Sen. Kim Ward (R-Westmoreland) signed a letter asking members of Congress to delay certifying Pennsylvania’s electoral votes despite no evidence that would call those results into question. The election-fraud lie led to the attack on the Capitol.

The failed vote marked the penultimate step in a more than two-year regulatory process.

Wolf directed the Department of Environmental Protection to develop a regulation to allow the state to join RGGI in a 2019 executive order.

The draft rule was vetted by advisory and oversight boards, as well as public comment. It passed scrutiny by the Independent Regulatory Review Commission and the Attorney General’s Office.

The House and Senate passed disapproval resolutions on the regulation last fall. The legislature and Wolf Administration disputed the appropriate timeline for passing the resolutions. Wolf argued both chambers must consider a disapproval resolution on a concurrent schedule.

But the Legislative Reference Bureau disagreed with Wolf’s reading, saying the chambers can consider the measure in consecutive timeframes, and that the regulation could not be promulgated until the chambers had a chance to try to override the veto.

Because both chambers would need to have the votes to override, Monday’s vote meant the end of the disapproval resolution effort.

“This was a last gasp in a relentless, yet unsuccessful effort to halt the governor’s efforts to effectively address climate change and reduce greenhouse gas emissions. We’re pleased that this attempt to override the governor’s veto failed,” said Wolf spokesperson Elizabeth Rementer.

The Wolf Administration sued the LRB in Commonwealth Court earlier this year, in an attempt to get the regulation published sooner. That’s the case in which the court ordered the stay Tuesday evening.

A recent analysis from the state’s Independent Fiscal Office shows Pennsylvania would get more than $700 million annually from RGGI if current economic conditions hold. The most recent modeling from the Department of Environmental Protection expected RGGI to raise about $200 million in 2022, had the state joined at the beginning of the year.

Opponents say it will hurt the state’s economy, killing jobs at coal-fired power plants and raising costs for manufacturers.

Supporters say joining RGGI is the most important thing the fossil fuel-producing state can do now to act on climate. Pennsylvania ranks fourth in the U.S. for carbon emissions, according to 2018 data from the federal Energy Information Administration.