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RGGI Ruling Appealed to State Supreme Court

Gov. Tom Wolf’s plan for the state to join the Regional Greenhouse Gas Initiative, or RGGI, faces a major setback after the Commonwealth Court recently blocked the Department of Environmental Protection from publishing the new rule in the Pennsylvania Bulletin. In response, the DEP has appealed this decision to the state Supreme Court. RGGI is designed to reduce greenhouse gas emissions by creating a cap-and-trade program for the state’s power plants. It is an initiative of 11 New England and Mid-Atlantic states to cap and reduce their power sector carbon dioxide (CO2) emissions. This is achieved by setting a regional cap, or limit, on CO2 emissions from electric power plants in the participating states. Allowances, equal to tons of CO2 that will enter the atmosphere from power plants, are auctioned quarterly, and electricity generators must buy the amount needed to cover their emissions, with the proceeds going to the states. For more on the Regional Greenhouse Gas Initiative, and to watch our webinar on the initiative, please click here! It was always likely that RGGI, in one way or another, would be settled in the courtroom, not in the State Capitol building. The process of joining RGGI has been met with opposition from the very beginning. Pushback began immediately after Wolf signed the executive order in 2019 directing the DEP to begin the rulemaking process necessary to join RGGI. For those opposed, the issues boil down to two main categories: discontent with RGGI as a program, and the governor’s method of joining RGGI. Those opposed to joining RGGI on the merits of the program argue that the cap-and-trade system actually a tax that will hinder industry and raise energy prices, while also questioning its actual effect on emissions. Many opposed also questioned whether the governor’s executive powers allow him to sidestep the legislature and if his actions are unconstitutional because the legislature has the power to create laws, enter interstate agreements, and impose taxes. The state Senate has tried to prevent the state from joining RGGI through the legislative process, passing a resolution that would disallow the state’s participation. This resolution was vetoed by the governor, and the Senate failed by one vote to override the veto. In a final effort, Republican senators went to the Commonwealth Court asking for an injunction to halt the publication of the rule, which was granted. In response, the DEP appealed the decision of the Commonwealth Court to the state Supreme Court, citing that the injunction was granted without hearing oral arguments. Publication of the rule was the final regulatory hurdle and would have made the action official, positioning the state to join RGGI this summer. Now, with more legal challenges expected, it is uncertain if, or when, Pennsylvania, may join.

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