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Climate Change Hero

Climate Change Blog

  • 01
  • June
  • 2016

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Massachusetts Supreme Judicial Court Holds the State’s Regulations Do Not Satisfy Requirements of Global Warming Solutions Act

On May 17, 2016, the Massachusetts Supreme Judicial Court held in Kain v. Department of Environmental Protection that the Massachusetts Department of Environmental Protection (“DEP”) had not fulfilled its statutory obligations under the Commonwealth’s Global Warming Solutions Act (“GWSA”). The decision may significantly alter the DEP’s regulation of greenhouse gas (“GHG”) emissions.

Background

The GWSA provides that the DEP shall “promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit [GHGs].” Although Massachusetts had established certain regulatory schemes to reduce GHG emissions, such as limits on sulfur hexafluoride leaks, a regional cap and trade market to manage carbon dioxide emissions known as the Regional Greenhouse Gas Initiative (“RGGI”), and a low emission vehicle program, Plaintiffs sought declaratory relief on the grounds that the DEP had failed to fulfill its statutory mandate. 

Plaintiffs argued that the GWSA required the DEP to promulgate regulations that addressed multiple sources or categories of sources of emissions, imposed a limit on emissions that may be released, limited the aggregate emissions released, capped emissions for each year, and reduced the limits on an annual basis. The DEP argued that its regulatory initiatives substantially complied with the GWSA’s requirements. A Superior Court ruled in the DEP’s favor, and the Supreme Judicial Court granted direct appellate review.

Supreme Judicial Court Decision

The Supreme Judicial Court concluded that the GWSA required the DEP to promulgate regulations that established volumetric limits on multiple GHG sources, expressed in carbon dioxide equivalents, and that such limits must decline on an annual basis. In addition, the court concluded that the sulfur hexafluoride, regional cap-and-trade program, and low emission vehicle regulations did not comply with the GWSA because they failed to ensure the type of mass-based reductions in GHGs across the sources or categories of sources regulated under each of the programs.

The Court held that the GWSA required the DEP to promulgate binding caps on emissions limits rather than aspirational targets. Rejecting the DEP’s argument that the phrase “desired level” indicated that aspirational targets were more appropriate, the court held that “emissions limits” required binding caps on emissions.  

The Court concluded that the GWSA requirement to adopt “regulations establishing declining annual aggregate emissions limits for sources or categories or sources that emit” GHGs required the DEP to promulgate GHG limits for multiple categories of sources, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources, set emissions limits for each year, and set limits that declined on an annual basis. The court explained that central purpose of the GWSA is to “effect significant reductions in emissions” in Massachusetts, and “that purpose would be frustrated if the department were to regulate emissions from only one group of sources or categories of sources.” The court reasoned that while the statute does not require the DEP to regulate all sources of GHGs, it does require the DEP to regulate “multiple” sources.

The court further concluded that the DEP’s sulfur hexafluoride and low emission vehicle programs did not meet these requirements because they did not impose mass-based reductions. Rather, they imposed declining emissions rates, which rates are calculated by dividing by the total amount of gas leaked at a facility over the previous year by the facility’s total sulfur hexafluoride gas capacity. As a result, the emissions rates the DEP used to achieve emissions reductions did not meet the requirements of the GWSA. Similarly, the DEP could not meet its statutory obligations through RGGI because the GWSA required the DEP to achieve certain emissions reductions in reference to a “business as usual” baseline, which baseline included RGGI.

Conclusion

While litigants trying to force government action on climate change often focus on federal requirements under the Clean Air Act, this case presents an example of how plaintiffs are also making use of state statutes meant to address air emissions. Agencies, like the EPA or DEP, are usually given great deference in their interpretations of a statute’s requirements. Notably, the Kain court did not defer to the DEP’s interpretations of the GWSA, and concluded that the plain language of the statute required more than the agency interpretation. 

 

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Author

Ross Woessner

Ross Woessner Associate