Battle RGGI: How the carbon emissions program has highlighted Pennsylvania’s political strife over environmental issues.

On July 1st, Commonwealth Court Judge Michael Wojcik granted a preliminary injunction against Pennsylvania’s entrance into the Regional Greenhouse Gas Initiative (RGGI). This halted Governor Wolf’s two-year effort to join eleven other eastern states in the cooperative effort to reduce CO2 emissions. On July 11th, he appealed the decision to the State Supreme Court, effectively lifting the preliminary injunction. 

The question at issue is whether Gov. Wolf can enter RGGI through executive order - something that RGGI opponents staunchly deny. They argue that Gov. Wolf’s order undermines the legislature’s exclusive authority to impose taxes and enter interstate agreements. As an energy powerhouse, Pennsylvania’s entrance would significantly strengthen RGGI and become a  “political litmus test” for carbon pricing programs. RGGI would arguably be the most significant step Pennsylvania has ever taken to address climate change, and the battle over it has brought political tensions around environmental issues to the forefront.  

RGGI is the first market-based cap-and-trade program that establishes a regional limit on CO2 pollution. Each participating state has an individual CO2 Budget Trading Program based on the RGGI Model Rule. Over time, the regional cap declines so that CO2 emissions decrease in a formulaic way. Within RGGI states, electric power plants are required to bid for allowances at quarterly auctions, authorizing them to emit 1 short ton of CO2 pollution. Auction proceeds are then invested into strategic energy and consumer benefit programs. RGGI states have added nearly $5 billion to their economies since the program began. 

Entering RGGI has been the centerpiece of Gov. Wolf’s plan to combat climate change. Describing RGGI as a “historic, proactive, and progressive approach that will have significant positive environmental, public health, and economic impacts,” Gov. Wolf has been intent on joining the program since he signed Executive Order 2019-07 back in October 2019. The executive order required the Department of Environmental Protection to submit a proposed rulemaking to the Environmental Quality Board by July 2021 that would “establish a carbon dioxide budget consistent in stringency to that established in the RGGI.” According to the Wolf administration, this is a solution that 72 percent of Pennsylvanians support.  

  Environmental groups also consider Pennsylvania’s entry into RGGI as a top priority. Pennsylvania is the third largest power producer in the nation, and would become RGGI’s largest emitter if the state were to enter the program. According to the EPA, the state had 85 million tons of CO2 emissions in 2021. Under RGGI regulation, emissions would fall to 58 million tons by 2030. Mark Szybist, a lawyer at the Natural Resources Defense Council, describes Pennsylvania’s entrance as a “springboard” to a more expansive clean energy industry in the state. 

On the opposing side, RGGI has been a unifying enemy for Republican lawmakers, coal and energy interests, and labor unions. The Senate Republican Caucus believes that the program will “result in the loss of good paying jobs and harm [the] state’s economy.” The Industrial Energy Consumers of Pennsylvania argues that RGGI will result in increased electricity costs to residents and put industrial manufacturers at a “competitive disadvantage to facilities in other states and countries.” Pennsylvania lawmakers disapprove of the “one sided-decision” made by Gov. Wolf, underscoring the importance of engaging the legislature in a decision that would heavily affect “communities and families whose livelihood is built upon important sectors of our energy economy.” Lawmakers attempted to pass the Senate Concurrent Regulatory Review Resolution 1, which would have disabled the state from joining RGGI, but the bill was vetoed by Gov. Wolf last December.  

An end to this contentious RGGI battle seems far from sight. A final decision could rest with the Supreme Court or by an agreement between Gov. Wolf and the General Assembly, but elections this fall might add further challenges. Republican candidate Doug Mastriano has promised to get Pennsylvania out of RGGI on “Day 1,” describing RGGI as a threat to national security. Democratic candidate Josh Shapiro is drawing criticism for his reservations about the program. Shapiro stated, “we need to take real action to address climate change, [and] protect and create energy jobs…as governor, I will implement an energy strategy which passes that test, but it’s not clear to me that RGGI does.” 

For a state that has a long history of fossil fuel dependence, heightened political tension around the topic of environmental restraint is neither surprising nor unprecedented. The problem is that we don’t have time for political jockeying. Pennsylvania’s climate has increased 2.8 degrees Fahrenheit since 1970, higher than the national average. The state must act fast to reign in its carbon emissions, and RGGI is a place to start. The program would hopefully create a path forward for more legislation that confronts climate change and symbolize Pennsylvania’s commitment to environmental issues. As Battle RGGI rages on, all eyes should be on Pennsylvania’s elections this fall. There is no time like the present to be informed about the candidates’ views on RGGI, and head to the polls.  

By Gabrielle Hughes, Fair Shake Legal Intern

A 51-year-old (Almost) Trendsetter: The Pennsylvania Environmental Rights Amendment

In 1971, the Pennsylvania General Assembly (the legislature of the U.S. commonwealth of Pennsylvania) altered the state constitution to include an Environmental Rights Amendment (ERA): 

“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.” Constitution of the Commonwealth of Pennsylvania, Article 1 §27. 

This marked the first instance of a state granting its citizens an affirmative right to a healthy environment. The creation and adoption of this amendment followed decades of environmental degradation throughout Pennsylvania; as the state’s economy swelled from coal and steel production, its water and air quality suffered. This, along with the national movement towards environmental activism after the inaugural Earth Day in 1970, motivated the Pennsylvania General Assembly to pass the ERA. In fact, the amendment passed with unanimous bipartisan support! 

A year later, in 1972, Montana followed Pennsylvania’s example and adopted an ERA. While a handful of other states have written environmental protections into their constitutions, Pennsylvania and Montana were the only two states to include it in their Bill of Rights for nearly 50 years. This changed when, in 2021, New York adopted an ERA in its Constitution’s Bill of Rights. The language in New York’s ERA is similar to that in the Pennsylvania and Montana amendments, but the scope of its application will depend upon how NY state courts interpret the ERA in future litigation. This was true of Pennsylvania’s ERA which did not prove to bear significant weight until 2013, 42 years after the General Assembly adopted it into Pennsylvania’s Bill of Rights. 

Two years after its passage, Pennsylvania’s ERA came up in two cases: Commonwealth v. National Gettysburg Battlefield Tower (Battlefield Tower) and Payne v. Kasaab (Payne). The courts’ decisions in these instances minimized the scope of the ERA. In Battlefield Tower, the court found for a private developer wanting to construct an observation tower alongside Gettysburg battlefield, focusing on how the ERA creates an affirmative right against the government, not private parties. In Payne, the court found for the Pennsylvania Secretary of Transportation, Pennsylvania Department of Transportation, the City of Wilkes-Barre, etc. responsible for a road-widening project that protruded into a public park. In its conclusion, the court established a 3-part test for applying the ERA in a way that controls development rather than preclude it. This test reduced the impact that the ERA could have because it watered down the language and purpose of the amendment. 

After these initial cases, Pennsylvania’s ERA lay mostly untouched—ignored, even—by the courts. Until, in 2013, the Pennsylvania General Assembly replaced the PA Oil and Gas Act with a statutory framework allowing oil and gas companies increased power in where and when they could frack for resources. In Robinson Township v. Commonwealth (Robinson), community members challenged the statutory scheme, arguing that it violated their rights protected under the ERA. The case went all the way to the Pennsylvania Supreme Court and, in a plurality opinion, the court, firstly, determined that the community members had standing to bring a case under the ERA and, secondly, held certain parts of the statute to be unconstitutional. This was significant because, in doing so, the court narrowed the applicability of Payne’s 3-part test and bolstered the government’s obligation towards the public under the ERA. This case laid the foundation for an increased judicial, legislative, and executive respect for the ERA and its importance to Pennsylvanian citizens. 

In Pennsylvania Environmental Defense Foundation v. Commonwealth of Pennsylvania (PEDF), four years after the Robinson Township decision, the PA Environmental Defense Foundation (PEDF) brought a case against the Commonwealth, alleging a violation of the ERA. In this case, the PA Department of Conservation and Natural Resources had leased land for the extraction of natural gas. The PA General Assembly then decided to limit the percentage of these profits going towards conservation efforts and allocated the remaining funds to the Commonwealth’s general fund. Here, the Pennsylvania Supreme Court found that the Commonwealth’s distribution of funds violated its obligation as trustee under the ERA. The court dissolved the 3-part test from Payne, concluding that it “strips the [Pennsylvania ERA] of its meaning.” It held that “the Commonwealth (including the Governor and General Assembly) may not approach our public natural resources as a proprietor, and instead must at all times fulfill its role as a trustee.” 

This decision marked a substantial turning point for Pennsylvania’s ERA because it not only upheld, but also built upon the decision in Robinson, setting precedent for state courts addressing ERA cases in the future. In this way, Pennsylvania also provides an important framework for other states aiming to adopt ERAs into their respective Bill of Rights. To be clear, Pennsylvania is far from perfect; however, it is fair to hope that the scope of Pennsylvania’s ERA will continue to widen, further protecting the state’s natural resources and building a healthier environment for its citizens. In light of SCOTUS’ decision in West Virginia v. EPA (read more about it here), it is critical that individuals, communities, and states drive the fight against the climate crisis.  

Pennsylvania’s ERA was the first of its kind and, ideally, it eventually becomes one of many ERAs across the United States. Hopefully, New York’s adoption of an ERA into its constitution’s Bill of Rights signals a momentum in the right direction, but only time will tell. Climate change impacts everyone, but not equitably. States should indicate a commitment towards all of their citizens by enshrining the affirmative right to a healthy environment in their respective constitutional Bill of Rights.  

By Rita Flanagan, Fair Shake Legal Intern

SCOTUS' Decision in West Virginia vs. EPA Weakens Federal Climate Efforts

On June 30th, the Supreme Court weakened the Environmental Protection Agency’s (EPA) ability to protect the environment. In West Virginia v. EPA, a 6-3 decision authored by Chief Justice Roberts and joined by the other conservative justices, the Court ruled the EPA overreached in its efforts to curb air pollution. This decision forebodes more significant limitations on the EPA and other government agencies’ efforts to effectuate change. The ruling also makes clear what many environmental advocates already knew: the federal government, as currently designed, will not be the leader in the fight against climate change. Grassroots movements, community-oriented advocacy, and mass mobilization are essential in the effort to protect the planet, now more than ever. 

The core question of West Virginia was the discretion the EPA, the agency charged with enforcing federal environmental statutes, had in interpreting the Clean Air Act (CAA). The purpose of the CAA is “to protect and enhance the quality of the Nation’s air resources so as to promote [] public health and welfare.” Specifically, the EPA must design the “best system of emission reduction.” During the Obama Administration, the EPA created the Clean Power Plan (CPP) to accomplish the task set out in the CAA. In the CPP, the EPA essentially devised a cap-and-trade system, where emissions operators (think power companies and the like) would have to invest in clean energy elsewhere if they polluted over a certain threshold. This “best system” decision was innovative for the EPA and part of its efforts to substantively engage in environmental protection. 

The CPP never went into effect. Before promulgation, the Trump Administration replaced the CPP with the less protective Affordable Clean Energy (ACE) Rule. Both rules spent time in judicial limbo until the Biden Administration made both inconsequential in stating its intention to develop a rule of its own. Despite the CPP’s irrelevance, several conservative states, coal mine owners, and energy companies brought forth a challenge, and the Supreme Court agreed to hear the case. 

Delegating decisions to agencies like those seen in the CPP is common practice. Congress knows it lacks expertise in specific areas and will not always be able to respond to an ever-evolving world. Instead, Congress endows agencies with the power to make the necessary decisions. Such delegation requires agencies to exert discretion in interpreting and enforcing legislation. Over the last four decades, the Court has been very deferential to agencies’ interpretations of the law, typically only intervening where an agency’s interpretation was wholly unsupported by the text of the statute. 

In West Virginia, the Court cut against precedent in striking down the CPP. In doing so, the Court recognized the “major questions doctrine,” which the Court had hinted at in previous cases but never formally invoked. Applying this doctrine, the Court ruled the CPP was too significant a change to be left to the EPA, stating “a decision of such magnitude and conse­quence rests with Congress itself, or an agency acting pur­suant to a clear delegation from that representative body.” 

How substantial a question needs to be before the new doctrine applies is unclear. As noted in Justice Kagan’s dissent, joined by the other two liberal justices, the standards set by the EPA were commonplace and unambitious. The industry, of its own accord, employed the techniques formerly championed by the EPA to exceed the EPA’s target emission reductions. As a result, the power industry overwhelmingly supported the EPA in this case. The decision makes apparent that the EPA and other federal agencies should expect further limitations on their powers; however, the scope of such curtailments remains unknown. 

Nevertheless, two critical lessons from this decision are known. First, even under a liberal regime, the EPA set climate change goals so unambitious that the industry met them without prompting. Second, the Supreme Court will strike down even modest environmental goals the executive branch sets. U.S. leaders have been ineffective at using their position to stem climate change, and even if they were successful, the Supreme Court would undermine these efforts. The U.S. federal government is not the answer to saving our world. With an ineffective federal government incapable of passing and enforcing meaningful environmental legislation, grassroots mobilization and collective action are needed. 

The above is not to say that individuals will be able to prevent global climate change by diligently recycling and refraining from eating meat on Mondays. These actions are not enough. The fact remains over 70% of greenhouse gas emissions can be traced back to just 100 companies. Nor is it to say that the federal government has no role in staving off the climate crisis, only that the federal government, in its present state, will not act unless pressured. Instead, preventing a complete climate disaster requires a multifaceted approach that considers and is led by those most impacted. 

With a federal government largely unwilling and incapable of leading into the future, the task of producing real change falls, as it always does, on the people. Those most impacted already know what is needed to make the situation better. Communicating, organizing, and mobilizing brings these issues to light and suggests solutions that those in power are too afraid to attempt. Change requires global collective action. Change requires community-oriented organizations fighting to mitigate harm within the legal system while aiding advocacy efforts. Change requires municipalities and states picking up where the federal government failed. Change requires assembling in numbers so great that the federal government must reconceptualize its practices and employ the tools still at its disposal. Effecting said change requires mobilization not seen for generations, but such efforts might be the last hope at saving the planet.

By Logan Campbell, Fair Shake Legal Intern