Greenhouse gases: passing the buck

For several years, the General Court and the Patrick administration made an intramural sport out of passing the buck over greenhouse-gas emission limits: extremely ambitious goals set for dates long after terms of the legislators, bureaucrats and governor had expired. The fit is finally hitting the Shan over one episode, the so-called Global Warming Solutions Act (GWSA) of 2008.

Our Children’s Trust, an Oregon-based nonprofit, organized a challenge on behalf of four Massachusetts high-school students, claiming that the state Department of Environmental Protection had failed to satisfy a GWSA requirement. In August, 2014, lawyers from the Boston firm of Sugarman, Rogers, Barshak & Cohen filed suit, joined by the Conservation Law Foundation in Boston and by the Energy Consumers Alliance of New England. [Kane v. Massachusetts]

Bad law makes hard cases: The terms of state legislation have made the Kane case an uphill struggle. The GWSA provision at issue requires: “The [Department of Environmental Protection] shall promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions [sic].” [Massachusetts General Laws C. 21N, S. 3(d), as enacted by Acts and Resolves of 2008, C. 298, S. 6]

What plaintiffs in the Kane case clearly want is some form of overall state limit on Massachusetts greenhouse gas emissions, declining year-by-year. For better or worse, that was not required by GWSA. Instead, the state was directed to establish declining goals for some sources, and it did more than that. Its defense to the lawsuit cited three state regulations with declining, mandatory limits, adopted after GWSA.

In 2012, the state updated regulations for the Ultra-low-emission Vehicle Program. [310 CMR 7.40(2)(a)] In 2013, it amended regulations for the CO2 Budget Trading Program. [310 CMR 7.70(5)] In 2014, it issued new regulations for sulfur hexafluoride emissions from gas-insulated switchgear. [310 CMR 7.72] Each of those had declining, mandatory limits–not just goals–for years from 2015 through 2020.

Judge Robert Gordon of Suffolk Superior Court made swift work of the original case. He wrote, “The regulatory initiatives implemented by DEP may or may not prove effective…it will not be because the Department flouted the statutory directives…It is not…for this Court to rewrite the statute that the plaintiffs wish the General Court had enacted…the Massachusetts Department of Environmental Protection has substantially satisfied the requirements of Mass. G.L. C. 20N, S. 3(d).”

Newspapers make mischief: In their typical, hackneyed “he said…she said” style, newspapers have spun a straightforward decision into a moral crisis. Writing in the Boston Globe, David Abel quoted lawyers who argued for the plaintiffs in the Kane case, saying, “…the state has failed to take sufficient action to comply with the state’s 2008 Global Warming Solutions Act.”

The Supreme Judicial Court allowed the case an expedited appeal, soliciting briefs from “friends of the court” and hearing arguments on Friday, January 8. However, even an activist court would need to perform gymnastics to find that the Massachusetts Department of Environmental Protection did less than GWSA asked. So far, newspapers and lawyers let off the hook the legislators who drafted a poorly planned and badly written law.

– Craig Bolon, Brookline, MA, January 11, 2016

An act establishing the Global Warming Solutions Act, Massachusetts Acts and Resolves of 2008, Chapter 298

Complaint, Kane, et al. v. Massachusetts DEP, Suffolk Superior Court Case No. 14-02551, filed August 11, 2014

Judgment, Kane, et al. v. Massachusetts DEP, Suffolk Superior Court Case No. 14-02551, issued March 23, 2015

Reducing sulfur hexafluoride emissions from gas-insulated switchgear, Massachusetts regulation 310 CMR 7.72, April 25, 2014

CO2 budget trading program, CO2 allowance allocations, Massachusetts regulation 310 CMR 7.70(5), revised December 6, 2013

Ultra-low-emission vehicle program, Emissions requirements and prohibitions, Massachusetts regulation 310 CMR 7.40(2)(a), most recently revised January 1, 2016

David Abel, Suit faults Massachusetts record in cutting emissions, Boston Globe, January 3, 2016

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