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Top stories of 2023: RGGI struck down by court, appeal pending

  • Rachel McDevitt
The Pennsylvania Judicial Center, which houses the Commonwealth Court, is seen here on May 5, 2022.

Rachel McDevitt / StateImpact Pennsylvania

The Pennsylvania Judicial Center, which houses the Commonwealth Court, is seen here on May 5, 2022.

The state’s effort to cut greenhouse gas emissions from power plants hit another roadblock this year, when a court ruled the measure an illegal tax.

But that might not be the final word on the program, which would make Pennsylvania the first major fossil fuel-producing state to put a price on carbon emissions.

The saga of Pennsylvania trying to join the Regional Greenhouse Gas Initiative is stretching into a fifth year.

Gov. Tom Wolf proposed joining 11 other states in the cap-and-trade program by executive order in 2019.

In November, Commonwealth Court sided with industry groups and Republican lawmakers, ruling that the money raised through the program would amount to an illegal tax. Only the general assembly can levy taxes.

Senate Majority Leader Joe Pittman (R-Indiana), whose district includes a few of the state’s last coal-fired power plants and who has fought against RGGI, called the ruling a victory.

“With this decision we have the opportunity to finally close a tumultuous chapter and move forward to determine the best legislative solution to foster greater energy independence, while ensuring the responsible development of our God-given natural resources,” Pittman said.

Environmental groups urged the Shapiro Administration to appeal to the Supreme Court.

“We cannot just let power plant pollution go unabated,” said Jessica O’Neill, an attorney with PennFuture.

Judge Micheal Wojcik noted in his opinion that RGGI was expected to raise three times the Department of Environmental Protection’s annual state budget in just one year.

Robert Routh with the Natural Resources Defense Council says the amount shouldn’t be the determining factor.

“Frankly, the amount that is raised is commensurate with the significant amount of carbon pollution that Pennsylvania power plants emit,” Routh said.

The Shapiro administration is appealing, but not because it is committed to joining RGGI. Gov. Josh Shapiro said it’s a matter of preserving executive authority.

Shapiro wants to follow the recommendations of a working group he convened that said a cap-and-invest program would be optimal in supporting an energy transition that can benefit the environment. But it did not endorse RGGI as the best option.

Shapiro is asking lawmakers to work with him on an alternative.

O’Neill noted the working group included people from industry who were challenging RGGI as well as environmental groups who supported the regulation.

“Obviously, they had different roles, different positions they took throughout the litigation so far,” she said.

Mandy Warner with the Environmental Defense Fund says the state, which is the 4th-largest carbon dioxide emitter in the country, should start with RGGI and then look to work with other states to manage emissions.

“RGGI was not going to ever be the end-all, be-all policy for the power sector, but it is such a strong foundation and, again, it is ready now,” Warner said.

RGGI raises money through auctions, during which power plants buy allowances for how much carbon dioxide they emit.

By some estimates, the state has already missed out on more than $1 billion by not participating in RGGI as soon as the regulation was finished.

That money could have been used to boost clean energy and energy efficiency programs.

“Imagine how far one and a quarter billion dollars could go,” Routh said.

Had the legislature passed a law, money also could have gone to assist workers after recent coal plant closures.

The Supreme Court has not yet set a date for arguments.

John Dernbach, an emeritus professor of environmental law and sustainability at Widener University Commonwealth Law School, believes the Supreme Court could overturn the lower court ruling.

Dernbach filed a brief in support of the RGGI regulation, arguing in part that joining would support the state’s obligation to its people under the Environmental Rights Amendment. The ERA protects Pennsylvanians’ right to a clean environment, including for future generations.

The ERA was adopted in the 1970s but was rarely invoked until recently. The Supreme Court’s 2013 decision siding with a township that wanted to restrict gas drilling brought the ERA to new prominence.

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