On November 1, the Commonwealth Court issued an opinion on the challenge to the final DEP regulation limiting carbon pollution from power plants (RGGI) declaring the rulemaking an “invalid tax” and enjoining DEP and the Environmental Quality Board from enforcing its provisions.

The 12-page opinion said, “Stated simply, to pass constitutional muster, the Commonwealth’s participation in RGGI may only be achieved through legislation duly enacted by the Pennsylvania General Assembly, and not merely through the Rulemaking promulgated by DEP and EQB.”

Judge Ellen Ceisler filed a dissenting opinion to the majority ruling.

Former DEP Secretary Rich Negrin said DEP is likely to appeal an adverse ruling to the PA Supreme Court.

Click Here for a copy of the opinion.

Commonwealth Court also issued a related opinion in a DEP challenge to the Legislative Reference Bureau for not publishing the final RGGI regulation for a period of time saying the case is now moot given the opinion issued on the key challenge to the rulemaking.

Click Here for a copy of the opinion.

Reactions

The York County-based Evangelical Environmental Network issued this statement on the Commonwealth Court Decision - We Must Put Pennsylvanians And God's Creation Above Special Interests--

“Today, a lower Commonwealth Court dealt a setback to Pennsylvania’s fight to defend our children from the deadly threats of fossil fuel pollution and vector-borne diseases like Lyme Disease, create new family-empowering careers, and address climate change.

“The court ruled against the state's CO2 Budget Trading Program and its membership in the successful fair market-based Regional Greenhouse Gas Initiative (RGGI).

“We urge Governor Josh Shapiro and the state Department of Environmental Protection to appeal this misguided ruling and put Pennsylvanians and God’s creation above special interests.

“Recently, EEN Action delivered over 51,000 comments from evangelical Christians urging Governor Shapiro to support Pennsylvania reaffirming its commitment to the Regional Greenhouse Gas Initiative (RGGI).

“These comments are in addition to the more than 30,000 comments from individual pro-life Christians collected by the Evangelical Environmental Network supporting former Governor Wolf’s RGGI rulemaking in 2021.

“These conservative Christian voices should encourage Governor Shapiro to appeal this misguided commonwealth court decision and uphold the RGGI rulemaking as well as our Pennsylvania Constitution’s Environmental Amendment:

“The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic, and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the commonwealth shall conserve and maintain them for the benefit of all the people.”

“Without a doubt, the constitutional rights of Pennsylvanians are being violated, and RGGI provides the best market-based solution for dealing with these violations. We believe our Pennsylvania Supreme Court will make the same judgment.

“Pennsylvania has already missed out on approximately $2.0 billion in RGGI fees, dollars that could have started building a clean energy future that doesn’t threaten our children’s health, provides excellent-paying careers, and keeps benefiting Pennsylvanians first.

“Pennsylvania has a long energy legacy; however, that legacy has also come with the harmful impact of millions of acres of abandoned mines that continue to haunt us by spewing toxins into our once pristine waters.

“An oil and gas industry that has left behind hundreds of thousands of polluting abandoned wells continues to do so.

“The current gas industry–according to numerous medical studies–is linked to preterm birth, brain damage, other severe impacts, and potentially increased cancer rates for those living near production sites.

“Over 202,000 PA children and almost 1.5 million adults live within the 0.5-mile threat radius of methane production. But all Pennsylvanians breathe increased smog and soot, inflaming asthma and other medical risks due to methane and its co-pollutants.

“Carolyn Heckman, EEN’s Pennsylvania Policy and Outreach Coordinator, and her own family have been impacted by the same emissions that RGGI would reduce.

“Like many families across the Commonwealth, her 4-year-old son was recently diagnosed with Lyme Disease, which the likelihood of contracting in Pennsylvania is higher than any other state due to the pollution from fossil fuel development.

“Kim Anderson, EEN’s Associate Director of Outreach for Pennsylvania, and her family have been affected as well.

“Significant medical research links pollutants from burning fossil fuels (like soot) with dementia, which recently contributed to the death of her father. He had been a brilliant research chemist with dozens of patents to his name but, towards the end of his life, struggled to form words like “door” or “car.”

“Governor Shapiro, let’s defend RGGI and make it a reality that finally holds the fossil fuel industry accountable to clean up the messes they made for over a century, defends our children’s lives and health, and provides the funds to jumpstart a new clean energy economy that benefits Pennsylvanians first and restores hope to all Pennsylvania communities.”

The PA Environmental Council released this statement on the court decision--

“Today’s decision marks another unfortunate delay for action on climate change and preparing Pennsylvania and its communities to succeed in the inevitable clean energy transition.

“It’s important to note what was not questioned by the lower court’s decision – that there is an undeniable need to reduce emissions of greenhouse gases, and that RGGI offers the clear benefits of a demonstrated, efficient, and flexible means to do so.

“The court also did not absolve the Governor or General Assembly’s responsibility, under Article I, Section 27 of the state constitution, to address climate change and greenhouse gas pollution.

“For the moment, Pennsylvania is without a plan. But the opportunity to act is not foreclosed for the Governor or General Assembly, or the Pennsylvania Supreme Court for that matter. What happens next can’t be left to further excuse or delay.

Grasping this lower court ruling as the end of the conversation – or responsibility to act – is signaling the intent to let our state fall further behind and to suffer the consequences.

“All while Pennsylvanians continue to see increased impacts and costs resulting from climate change, communities and workers continue to lack support in the transition, consumers continue to feel the effects of reliability and cost uncertainty from existing energy generation, and as other states continue to eclipse us in clean energy investment and growth.

“PEC doesn’t take the enormity of this challenge lightly. But we also aren’t willing to forgo opportunities that present real solutions and benefits, nor the obligation to act. RGGI is one of those opportunities.”

Environmental Defense Fund Executive Director Amanda Leland had this to say about the decision--

“Earlier this year, the Governor’s RGGI Working Group concluded its convenings and critically found that a program to limit pollution and invest in Pennsylvania’s future is the ‘optimal’ approach for the state and that cutting air and climate pollution from power plants was both inevitable and necessary.

“Governor Shapiro has a strong record of leading on climate and energy issues, putting Pennsylvanians’ well-being above politics, and should continue that legacy by appealing this erroneous decision as soon as practicable.

"We agree with the Governor that the state’s Environmental Rights Amendment, which enshrines the right to clean air and pure water for all Pennsylvanians, is a guiding principle we should all follow and that is consistent with what RGGI can provide.”

Natural Resources Defense Council President & CEO Manish Bapna issued this statement on the ruling--

“This is not the final word on Pennsylvania’s participation in RGGI or the vast benefits it confers on the people of this state. For nearly 20 years, Governor Shapiro has been a champion for clean air, climate action and a prosperous Pennsylvania.

“He should appeal this misguided decision at once and make the case before the state Supreme Court for a program that’s already proven itself across the Northeast and Mid-Atlantic.

“Every day of delay is costing the people of Pennsylvania urgently needed investment in the clean energy economy of the future and equally important assistance to communities facing coal plant retirements.

“RGGI is a powerful tool for confronting the climate crisis in a way that creates jobs, cuts energy bills and powers the future for the people of Pennsylvania. It’s time for the governor to take that case to the state Supreme Court.”

Conservation Voters of PA Executive Director Molly Parzen said this on the ruling--

“The Commonwealth Court ruling regarding Pennsylvania’s participation in the Regional Greenhouse Gas Initiative (RGGI) is a misguided but temporary setback to efforts to protect Pennsylvanians’ constitutional right to “clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.

“While an aspect of this litigation is already before the Supreme Court of Pennsylvania, the Shapiro Administration must appeal today's ruling to our state’s highest court if we are to make any progress in the fight against climate change and towards a clean energy economy.

“Governor Shapiro's record on protecting our air, water and natural resources is a robust one stretching back to his tenure as attorney general, county commissioner and state legislator. We are confident in his commitment to our environment.

“Today’s ruling illustrates the importance of our statewide judicial races and electing judges who will vigorously stand up for the environmental rights of Pennsylvanians.

“As our constitution notes, “our natural resources are the common property of all the people, including generations yet to come.”

“This is not the final word on this matter, and we are confident Pennsylvania will be a leader in the clean energy economy.”

Senate Majority Leader Joe Pittman (R-Indiana) issued this statement--

“Today’s ruling by the Commonwealth Court affirming the RGGI Electricity Tax violates our state Constitution is a victory for Pennsylvanians. The Senate Republican Caucus has been unwavering in our commitment to advocate for communities across our commonwealth who would be harmed by the RGGI Electricity Tax. At a time when families continue to feel the strain of inflationary pressure, we must look for ways to decrease, not increase, the cost of electricity.

“The Commonwealth’s participation in RGGI may only be achieved through legislation duly enacted by the Pennsylvania General Assembly, and not merely through the rulemaking promulgated by DEP and EQB. Gov. Wolf’s decision in 2019 to unilaterally force Pennsylvania to join RGGI was a failed, harmful, and unconstitutional policy.

“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.”

Rep. Martin Causer (R-Cameron), Minority Chair of the House Environmental Committee said--

This is great news for all of us who rely on Pennsylvania energy to help heat our homes and power our vehicles, as well as for people who rely on the industry for their paychecks.

"RGGI would have crushed our energy industry, leading to a drop in our energy supply and a substantial increase in costs for consumers. Now we have the opportunity to realize the full potential of the industry in the Commonwealth.”

"We knew it was wrong from the start. RGGI is, without a doubt, a tax on consumers, and taxes have to originate through action by the Legislature, not the regulatory process. I’m pleased the court agreed.”

House Republican Leader Bryan Cutler (R-Lancaster) issued this statement--

“The unlawful entrance into RGGI by the prior administration was a slap in the face to Pennsylvanians who continue to deal with rising energy prices and increasing inflation. Today’s decision by the Commonwealth Court is a positive development in ensuring that RGGI will not add to increasing energy costs on Pennsylvania families.

“I encourage the Shapiro administration, which has thus far refused to completely embrace RGGI and its associated energy tax, to not appeal today’s Commonwealth Court decision and give Pennsylvanians the certainty that this program will not add to the increasing costs they face.

"The House Republican Caucus remains ready, willing and able to work with all interested parties to find a sound path forward for Pennsylvania’s energy development in a way that respects the pocketbook issues of our families who are already facing increasing energy prices and the overall economic health of our Commonwealth.”

NewsClips:

-- AP: Commonwealth Court Blocks Effort To Make Power Plants Pay For Greenhouse Gas Emissions [RGGI]

-- Spotlight PA: PA Court Strikes Down Key Climate Program [RGGI], But Environmentalists Expect An Appeal

-- StateImpactPA - Rachel McDevitt: PA Court Rules Climate Program Is An Illegal Tax, Says State Cannot Join RGGI

-- The Center Square: Commonwealth Court Strikes Down Carbon ‘Tax’ [RGGI]

-- City & State PA: Breaking Down The RGGI Rulings And What They Mean

-- Pittsburgh Business Times: Shapiro Mum On Whether He’ll Appeal RGGI Decision [Still Reviewing Court Decision]

-- Williamsport Sun: PA State, Federal Lawmakers Applaud Commonwealth Court Decision Invalidating RGGI

-- Chesapeake Bay Journal - Ad Crable: Pennsylvania’s Inclusion In RGGI Remains Uncertain

Related Article:

-- Gov. Shapiro’s Work Group Concludes A Cap-And-Invest Carbon Pollution Regulation Program Would Be Optimal Approach To Reducing Greenhouse Emissions From Power Plants; Scale Up Solar Energy [PaEN]

[Posted:  November 1, 2023]

11/6/2023