MassDEP Has A Lot of Discretion in Implementing the Global Warming Solutions Act

Unsatisfied with the pace of the administration’s implementation of the Global Warming Solutions Act, progress-on-2020-planthe Conservation Law Foundation sued the Massachusetts Department of Environmental Protection, seeking a court order requiring MassDEP to:

promulgate regulations establishing a desired level of declining annual aggregate emissions limits for sources or categories of sources that emit greenhouse gas emissions.

The Court did not oblige.  Earlier this spring, noting the vagueness of the requirements imposed on MassDEP by the GWSA and the discretion given to MassDEP, the Court examined the regulations that MassDEP has promulgated and found them more than sufficient to meet any nondiscretionary duty MassDEP may have under the GWSA.

The opinion, which is on appeal, is noteworthy for at least two reasons.  First, the purpose and goals of the GWSA are sufficiently broad that the Court felt compelled to cut MassDEP some significant slack.

With a legislative enterprise as broad and complex as the GWSA, “there are likely to be casual overstatements and understatements, half-answers, and gaps in the statutory provisions.  As practice develops and the difficulties are revealed, the courts are called on to interweave the statute with decisions answering the difficulties and composing, as far as feasible and reasonable, an harmonious structure faithful to the basic designs and purposes of the legislature.”

In short, the Legislature’s reach exceeds its grasp, and the courts have to fix the mess left by the legislative process.  With such a background, and given the deference given to administrative agency interpretation of statutes within its jurisdiction, it would have been a huge surprise had the Court ruled for CLF.

The other notable aspect of the opinion is its conclusion that MassDEP traditionally builds flexibility into its regulations and that MassDEP should therefore not be expected to impose hard limits on GHG emissions without any kind of waiver or exception process.

If [the GWSA] did impose such an inflexible restriction, it would entail a departure from the manner in which DEP customarily implements hard limits.  In the ordinary course, DEP’s public safety regulations allow for exceptions to generally-imposed limits or requirements.

Really?  News to me.  Where’s that warm and fuzzy, flexible DEP when my clients need it?

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