SJC to state: Broaden emission mandates

Transportation sector seen as likely target for regulations

STATE HOUSE NEWS SERVICE

A UNANIMOUS SUPREME JUDICIAL COURT RULING handed down on Tuesday affirms the state’s obligations under a 2008 global warming law and orders state government to create and implement regulations that apply to multiple carbon sources to meet its emission reduction mandates.

Vacating a Superior Court judge’s ruling, the SJC ruled that Department of Environmental Protection (DEP) regulations do not fulfill the specific requirements of the Global Warming Solutions Act of 2008. The ruling requires the department to promulgate regulations “that address multiple sources of categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or categories of sources, set emission limits for each year, and set limits that decline on an annual basis.”

“This is a historic day,” Jenny Rushlow, the Conservation Law Foundation’s lead attorney on the case, said in a statement. “Today our highest court declared clearly and unequivocally that our leaders can no longer sit on their hands while Massachusetts communities are put at risk from the effects of climate change. ”

In an interview, Rushlow said the department has discretion over which carbon sources to regulate, but not whether to regulate. The building, heating, and transportation sectors are areas where emission reductions could be achieved, she said.

“If DEP is looking at where emissions are coming from, it would be well served to look at the transportation sector,” Rushlow said, noting that vehicles are a major source of emissions.

DEP officials did not respond to a request for comment on the ruling.

Dan Dolan, the president of the New England Power Generators Association, said he is hopeful the ruling will force state officials to seek emissions reductions from other sectors of the economy. “Massachusetts power plants have reduced carbon emissions by more than in half since 1990,” he said. “Transportation has actually increased its emissions over that time and now represents more than twice the emissions of any other sector of the economy.”

The ruling in Kain et al. v. Massachusetts Department of Environmental Protection was written by Justice Robert Cordy, who wrote that the case asked the court to examine whether DEP had fulfilled its mandate under the 2008 law that required regulations to be issued by Jan. 1, 2012, to take effect Jan. 1, 2013 and to expire on Dec. 31, 2020.

When the DEP failed to take action by the deadline, residents submitted rules to the department seeking the issuance of regulations. The department, after a hearing in June 2013, issued a statement concluding it had complied with the requirements of the law, citing a regional cap and trade program to reduce power plant emissions, efforts to limit gas leaks, and a low-emission vehicle program.

Plaintiffs went to Superior Court seeking relief in 2014 and a judge in March 2015 ruled for the department, prompting the appeal to the Supreme Judicial Court.

In his opinion, Cordy wrote that the law’s “unambiguous language…requires the department to promulgate regulations that establish volumetric limits on multiple greenhouse gas emissions sources, expressed in carbon dioxide equivalents, and that such limits must decline on an annual basis.”

The court ruled that the gas leaks, Regional Greenhouse Gas Initiative, and low-emission vehicle regulations, while important to overall greenhouse gas reduction efforts, “fall short of complying with the requirements . . . because they fail to ensure the type of mass-based reductions in greenhouse gases across the sources or categories of sources regulated under each of the programs, as intended by the Legislature.”

Meet the Author
In another part of the decision, Cordy wrote that “we reject the department’s interpretation of the provision, which would tend to undermine the act’s central purpose of reducing emissions in the Commonwealth.”

The court concluded that the DEP is “well equipped to say what actual reductions in emissions sources and source categories can be achieved because it has already inventoried emissions from every source and source category of emissions in the Commonwealth.”