Does MassDEP Have Authority to Regulate Electric Generating Emissions Under Section 3(d) of the GWSA? I’m Not So Sure.

As I have previously noted, I sympathize with the difficulties faced by MassDEP in trying to implement the SJC decision in Kain.  However, that does not mean that MassDEP can simply take the easy way out.  After rereading Kain, I have come to the conclusion that DEP’s proposal to limit GHG emissions from electric generating facilities in Massachusetts would in fact violate Kain, rather than constitute a means of compliance with Kain.

As a reminder, Kain challenged MassDEP’s failure to promulgate regulations under § 3(d) of the Global Warming Solutions Act, gwsa-2which required MassDEP to “promulgate regulations establishing a desired level of declining annual aggregate emissions limits for sources or categories of sources.”

MassDEP argued, in part, that the RGGI regulations, promulgated under § 3(c) of the GWSA, satisfied the 3(d) requirement.  The SJC disagreed, but the basis for its disagreement is important and I don’t think that MassDEP has read Kain as carefully as it should have.  In short, I think that the SJC concluded that §§ 3(c) and (d) are separate and distinct.  In other words, while regulations under § 3(c) do not satisfy § 3(d), it is also true that the two sections are intended to regulate different types of sources, and that electric generating sources are simply not subject to regulation under § 3(d).

What is the evidence for this conclusion?  The opinion is replete with it (all emphases are mine):

[The GWSA], § 3 (c), specifically carves out a separate process by which emissions levels and limits associated with the electric sector are established in consultation with the secretary and the Department of Energy Resources and are to take into account the RGGI.[23] By doing so, the Legislature recognized that a significant part of the electric sector would already be subject to regulations associated with the RGGI.  The RGGI is also addressed extensively in G. L. c. 21A, § 22, lending further support to the conclusion that the Legislature intended to treat emission reductions associated with the electric sector differently from other reductions in other sectors of the economy.

The department asks us to read the statutory provisions together, as directing the department to promulgate regulations establishing “a desired level of declining annual aggregate emission limits,” G. L. c. 21N, § 3 (d), and with respect to the electric sector, “tak[e RGGI] into account,” G. L. c. 21N, § 3 (c).  We disagree, as this reading ignores the Legislature’s intent that regulations related to electric sector be treated differently from regulations promulgated under § 3 (d).

I’m sorry, but this sure sounds to me as though the SJC understands the GWSA to regulate electric generating sources under § 3(c) and all other sources under § 3(d). Here’s a rhetorical question that makes the point.  How could the electric sector be treated differently from regulations promulgated under § 3(d) if in fact it is regulated under § 3(d)?

Finally, this reading has the virtue of making the SJC decision Kain less at odds with the actual goals of the GWSA.  As the Court noted, the legislature acknowledged RGGI in § 3(c).  Why would the legislature “specifically carve[] out a separate process by which emissions levels and limits associated with the electric sector are established” if it anticipated that the electric sector could also be regulated under § 3(d) in a way that is fundamentally inconsistent?

This is a case I’d enjoy litigating.

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