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Senate, House Members Announce Bills To Take Away DEP’s Authority To Adopt Any Greenhouse Gas Reduction Program; Offer No Alternative To Reduce Emissions

On November 19, Senate and House Republicans and a Democratic member announced the introduction of legislation to protect coal-fired power plants by requiring the approval of the General Assembly to join the interstate Regional Greenhouse Gas Initiative or similar programs.

The companion bills are Senate Bill 950 (Pittman-R-Indiana) and House Bill 2025 (Struzzi-R-Indiana) and were referred to the Senate and House Environmental Resources and Energy Committees.

The language of the bill contains a prohibition against DEP adopting any program to reduce greenhouse gas emissions unless specifically authorized by the General Assembly. The bill language follows--

“Prohibition.— Except for a measure that is required by Federal law, the department may not adopt a measure or take any other action that is designed to abate, control or limit carbon dioxide emissions, including an action to join or participate in a State or regional greenhouse gas cap-and-trade program, including the RGGI, nor may the department establish a greenhouse gas cap-and-trade program, unless the General Assembly specifically authorizes such a measure or action by statute that is enacted on or after the effective date of this section.”

The language would preclude Gov. Wolf’s action on October 3 directing DEP to join the Regional Greenhouse Gas Initiative through adopting a regulation by the Environmental Quality Board.

The language would also preclude another Gov. Wolf climate initiative-- his announced intention to be part of the Northeast Regional Transportation and Climate Initiative that would establish a regional cap-and-trade greenhouse gas reduction program covering vehicle fuels.

Through these legislative proposals, members of the Senate and House are asserting their authority as the legislative branch of government to have the right to be involved in making a decision like this which they feel has wide-ranging consequences for jobs and Pennsylvania’s economy.

Beyond asserting their institutional authority and the protection of coal-fired and other fossil fuel power plants from a cap-and-trade program like RGGI, the other main theme of the press conference was members believe Gov. Wolf does not have the statutory authority to require Pennsylvania to join RGGI or similar programs without the approval of the General Assembly.

DEP Secretary Patrick McDonnell and others have pointed to the authority in the existing state Air Pollution Control Act to regulate air pollutants, like carbon dioxide, as one basis for a regulation to create a cap-and-trade program like RGGI.

They also point to the fact DEP has adopted similar cap-and-trade programs for nitrogen oxide and sulfur dioxide emissions from power plants by regulation.

Both the nitrogen oxide and sulfur dioxide cap-and-trade programs work just like a carbon dioxide cap-and-trade program would work under RGGI with power plants purchasing “allowances” to emit those pollutants, the co-called “carbon tax,” as supporters of this legislation call it.

The U.S. Environmental Protection Agency has designated carbon dioxide an air pollutant to be regulated and the federal courts have affirmed that designation. The argument has been over how to regulate it and to what extent.

In response to a reporter’s question pointing out the statutory authority in the Air Pollution Control Act and asking if that is not enough, Sen. Joe Pittsman (R-Indiana) said, “Because it’s not.” He said only the General Assembly has the constitutional authority to impose a tax.

The reporter also asked if there was another proposal the group behind this legislation was planning to propose to make similar reductions in greenhouse gas emissions and members said they already believed reductions were being made.

In a press release after the announcement, Sen. Pittman said, “While the debate about climate change needs to be taken seriously, this effort has much more to do with the authority vested in the General Assembly and accommodating the Governor’s desired request for a collaborative process in deciding whether we move forward in joining RGGI.”

“The legislative process we are beginning today meets Governor Wolf’s oft stated desire to have a ‘government that works,’” said Sen. Pittman.

“This legislation is as much about separation of powers as it is about climate policy. One of the key components of RGGI is a tax on carbon emissions. The power to tax is a function of the legislative branch, not the executive branch,” added Sen. Pittman. “Regardless of anyone’s position on climate policy, it is a dangerous precedent to assume the Governor can unilaterally impose a tax. A carbon tax is a major energy and fiscal policy initiative. Beyond the fiscal impact on Pennsylvania manufacturers, coal and gas electric generation, consumers, and future economic investments made in our state, it also creates serious constitutional questions of checks and balances between the co-equal branches of government.”

In the statement, Sen. Pittman said the bills focus on three main points:

-- Declares the legislature does not believe the Governor has the ability to unilaterally enter RGGI.

-- Codifies a process that allows the Department of Environmental Protection (DEP) to move forward with RGGI, which includes a public comment period, public hearings, and requires the DEP to submit their proposal to the General Assembly.

-- Requires legislative approval before the DEP can formally enter RGGI.

In addition, the statement says--

The RGGI could have severe consequences in the state beyond impacting the viability of Pennsylvania’s 19 coal-fired electric generating units (EGU) - nearly one-quarter of the Commonwealth’s total electric generation capacity.

If they were forced out of business the burden of a carbon tax on power generation would be paid entirely by Pennsylvania’s natural gas-fired EGUs. That would likely make them less competitive with comparable plants in neighboring states and as such drive investment in natural gas electric generation to other states.

“The state legislature must be involved in any dialogue that would seek to impose a carbon tax, or similar tax, on in-state employers and citizens,” said Sen. Gene Yaw (R-Lycoming), Majority Chair of the Senate Environmental Resources and Energy Committee. “The Governor has unilaterally chosen a path forward to entering RGGI, and I have said before there remains a large number of unanswered questions as to what participating in RGGI would entail for the citizens of Pennsylvania. I remain leery in entering into any consortium with New York, New Jersey and Maryland who thumb their nose at Pennsylvania energy and embrace energy from foreign markets.”

“If the Governor insists on his plan, he will destroy the state’s struggling coal refuse industry. It is particularly disappointing in light of the fact that he previously supported federal plans to help these plants improve our local environment. Now he wants to put them out of business,” said Sen. David Argall (R-Schuylkill), Chair of the Senate RepublicanPolicy Committee. “I recently asked the residents of Schuylkill and Berks Counties their opinions on the Governor’s executive order to unilaterally tax carbon through one of my monthly polls. Eighty percent of respondents said that they opposed the Governor’s executive order.”

[Note: At about the same time the press conference was being held, DEP’s Citizens Advisory Council was hearing a presentation providing an overview of DEP’s process for developing a carbon dioxide cap-and-trade program covering power plants that is compatible with the Regional Greenhouse Gas Initiative to address climate change.]

Sen. Yaw: PA Has Little In Common With RGGI States

Sen. Gene Yaw (R-Lycoming), Majority Chair of the Senate Environmental Resources and Energy Committee, repeated comments he made at an October 22 briefing the Committee held on RGGI about not believing Pennsylvania has anything in common with other Northeast states in RGGI on energy issues--

“I'll be very blunt. Here's my concern, and I think from Pennsylvania's point of view, this is something you and hopefully the Governor will consider.

“I am worried about who we're working with.

“New York has basically denied us the ability to construct a pipeline so we can provide gas to New England. New Jersey has done the same thing. Maryland has done the same thing.

“Those people, in my opinion, they are not our friends.

“The net result of not being able to build a pipeline through New York to New England is New England is importing LNG from Russia. Now somewhere there's something wrong with that picture in my mind.

“So my concern is not that we're working on controlling greenhouse gases, it's who we're working with.

“I don't want to see a repeat of the Delaware River Basin Commission, and that's my fear.

“We've diluted Pennsylvania's interests to the point where we've lost control of a significant part of our state and actually a part of the state that has significant Shale gas. I don't want to see that happen again.

“I have no problem environmentally, if there is something we can do with greenhouse gas, then we should be doing it.

“I'm just not sure we should be doing it people who I'm not sure are our friends, frankly.”

Rep. Metcalfe Letter To DEP On RGGI

Rep. Daryl Metcalfe (R-Butler), Majority Chair of the House Environmental Resources and Energy Committee, released a letter to DEP Secretary Patrick McDonnell posing more than two dozen unanswered questions regarding the governor’s unlawful executive order to enter Pennsylvania into the Regional Greenhouse Gas Initiative (RGGI) without legislative approval.

The letter says in part--

“I am writing you today as the majority Chairman of the House Environmental Resources and Energy Committee to seek some information about the governor’s recent decision on the Regional Greenhouse Gas Initiative (RGGI).

“As you and the governor have both mentioned your desire to collaborate with the General Assembly on this issue, despite the governor’s Executive Order being by definition a unilateral one, I would appreciate a prompt, informative response to my inquiries as soon as possible on this vital subject.

“As you are aware, joining RGGI would be an enormous change to Pennsylvania’s energy economy, one that I believe requires you to seek the approval of the General Assembly before taking action. That being said, there remains a great deal of uncertainty as to how this process will proceed.

“It is crucial that every possible outcome and ramifications of such a decision be deliberately considered before action is taken. Therefore, I would appreciate answers to the following questions, so I and other members of the General Assembly can properly evaluate your decision:”

Among the questions included in the letter are--

-- What do you believe the Administration's legal authority is for joining RGGI?

-- What contacts has the Administration/DEP had with RGGI Inc. and the other RGGI states, and what input and feedback have been received from them?

-- Will or has the Department contracted with any third-party entities to assist it in developing or evaluating a draft. rulemaking?

-- Does RGGI's regional cap limit Pennsylvania's ability to set its own allowance limitation?

-- What is the anticipated first year of compliance for PA electric generation units, as envisioned by the Administration under the executive order?

-- At what level would the cap be established for year one of compliance?

-- Does the Administration/DEP anticipate dropping the cap to zero tons of CO2 at some point in the future?

Click Here for a copy of the letter.

A video of the entire press conference is available online.

Reaction

Joseph Otis Minott, Esq., Executive Director and Chief Counsel of Clean Air Council, issued the following statement about the announcement--

“The Wolf administration has clear and considerable authority under existing law to establish a Pennsylvania program to control air pollution from power plants.

"Linking Pennsylvania’s program with the other independent state programs in RGGI will help lower compliance costs and provide flexibility to regulated entities as part of a larger marketplace.

"It is deliberately and willfully misleading to describe this approach as a ‘tax.’

"Indeed, the legislation announced today would strip DEP of its existing authority to control dangerous air pollution. The General Assembly can play an important role in this process, but attacks grounded in bad faith are not what the residents of Pennsylvania deserve.”

PennFuture issued this statement in response to the announcement--

“Limiting carbon pollution from the power sector is an integral part of any serious attempt at combating climate change, and Pennsylvania must be part of the solution,” said Rob Altenburg, director of the PennFuture Energy Center. “Just last week, Pennsylvania’s Auditor General released a report documenting hundreds of millions of dollars per year in damages already being caused by climate change in our state and warned of impacts we can’t yet see, but polluters want to keep getting a free pass to dump their waste into our air. It’s well past time polluting industries pay their fair share.

“The Department of Environmental Protection has used market-based programs to control emissions a number of times, and we expect that experience will be reflected in their proposed regulation. The Legislature attempting to delay the process serves no purpose but to increase pollution."

(Photo: Bruce Mansfield coal-fired power plant in Beaver County. The largest coal-fired power plant in Pennsylvania, is due to close in November as a result of competition from natural gas.)

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