Carolyn Messer, JD Anticipated May 2024<\/p>\n\n\n\n
Climate change is an issue that impacts every region on the planet, and Pennsylvania is no exception<\/a>. Temperatures in the state have increased by almost two degrees Fahrenheit in the last century, and they\u2019re expected to increase another 5.9 degrees by 2050. These rapidly increasing temperatures have led to corresponding increases in rates of insect-borne illnesses like West Nile Virus and Lyme Disease. Rising instances of severe storms and floods driven by climate change have also caused extensive damage to Pennsylvanians\u2019 farms, roads, and homes. As temperatures continue to rise and the climate continues to shift, the risk to all Pennsylvanians only grows.<\/p>\n\n\n\n The significance of climate change to Pennsylvania is not limited to its impact on the state and is also deeply rooted in the state\u2019s responsibility for climate change. In 2020, Pennsylvania was the state with the fourth-highest amount of greenhouse gas emissions<\/a>, a high bar in the world\u2019s second-worst polluting country<\/a>. The majority of this pollution arises from the industrial and electric power sectors, yet the state currently does little to restrict these industries\u2019 greenhouse gas emissions.<\/p>\n\n\n\n Considering both the negative impact of climate change on Pennsylvanians and the responsibility Pennsylvania and its industry hold for greenhouse gas emissions, it is clear that Pennsylvania has a responsibility to act. Membership in the Regional Greenhouse Gas Initiative, also known as RGGI, would provide Pennsylvania with the opportunity to meet that responsibility by giving the state access to a program that\u2019s already been successful in reducing emissions in other nearby states. Although conservative politicians and industry interests have erected significant roadblocks to Pennsylvania\u2019s RGGI membership, becoming a part of RGGI is still a legal possibility and a massive potential public benefit that Pennsylvania and the Shapiro Administration should continue to pursue.<\/p>\n\n\n\n WHAT IS RGGI, AND WHERE DOES PENNSYLVANIA FIT IN?<\/strong><\/p>\n\n\n\n In order to understand what RGGI is and how it works, it is important to first understand cap-and-trade. Cap and trade<\/a> is a strategy for addressing climate change that focuses on decreasing emissions via market pressure rather than through direct government regulation. Under this system, the government sets an upper limit for annual emissions of a specific pollutant in a specific geographical area. This upper limit, called a \u201ccap,\u201d represents the total amount of emissions that will be allowed by all covered emitters combined.<\/p>\n\n\n\n After setting a cap, the government then issues what are called \u201callowances.\u201d Each allowance permits the emission of one unit of a pollutant, and the total number of allowances issued only permit emissions equal to or under the cap. It is illegal to emit the target pollutant without the appropriate number of allowances. Consequently, if an emitter is unable to acquire sufficient allowances from the government, its only options are to cease emissions beyond its allowances or purchase allowances from another emitter that has an excess. This system of trading allowances ultimately drives a market that prevents emissions in excess of that cap while allowing facilities that choose to reduce emissions to profit from the sale of excess allowances.<\/p>\n\n\n\n The Regional Greenhouse Gas Initiative, or RGGI, is a mandatory cap-and-trade program<\/a> directed at limiting CO2 emissions from the power sector. RGGI was first established in 2005, and it has been holding periodic auctions of CO2 emissions allowances since 2009. Currently, it covers Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont, and Virginia.<\/p>\n\n\n\n With so many member states, it\u2019s no surprise that administration of the RGGI cap-and-trade program is a joint effort. The coalition of member states sets an overall regional cap for CO2 emissions, and then each state adopts a portion of the overall RGGI cap based on historical analysis and negotiations between states. Power plants in member states that have a capacity greater than 25 megawatts must then obtain an allowance for each ton of carbon dioxide they emit annually over that cap.<\/p>\n\n\n\n RGGI\u2019s positive impact<\/a> on member states cannot be understated. On average, for member states, there was a 48% decrease in CO2 emissions between the first auction and the 2016-2018 review period. These considerable emissions reductions come with a plethora of benefits<\/a>, including improved public health, more affordable energy prices, and the creation of thousands of jobs. These emissions decreases are expected to continue, and by 2033, RGGI\u2019s goal is to reduce CO2 emissions by an additional 30% as compared to 2020 levels.<\/p>\n\n\n\n Despite these clear benefits to RGGI membership, Pennsylvania has not yet become part of the program. This is due in no small part to the opposition of the fossil fuel industry, which expanded its already significant influence in the state in 2007 with the advent of the fracking boom<\/a>. Fossil fuel interests in Pennsylvania have spent decades<\/a> preventing significant, meaningful climate change action from being taken by the state government, opposing not only the state\u2019s participation in RGGI but also most other laws that would have addressed climate change.<\/p>\n\n\n\n In 2019 that pattern finally seemed to shift. Pennsylvania Governor Tom Wolf issued an executive order <\/a>directing the Pennsylvania Department of Environmental Protection to propose a regulation that, in addition to directing other climate actions, would enable the state to participate in RGGI. In compliance with this order, Pennsylvania agencies developed a proposed regulation<\/a> targeted at power plants larger than 25 megawatts in size. For those plants, there would be a cap on carbon emissions declining at a rate of 3 percent per year, starting at 78 million tons in 2022 (as of the time the regulation was proposed) and reducing to just under 61 million tons in 2030. Allowances to emit CO2 under that budgetary limit would be auctioned off, and for every ton of CO2 one of the covered plants emits, the plant would be required to purchase one allowance. The proceeds of these allowance auctions would be invested in Pennsylvania communities and cleaner energy implementation.<\/p>\n\n\n\n Unfortunately, as Pennsylvania began to take real strides toward entering RGGI, the fossil fuel industry redoubled its efforts to resist the implementation of the new program. When trade labor unions voiced legitimate concerns<\/a> about the jobs of people involved in high-emissions industries, industry lobbyists and conservative politicians weaponized that fear. Rather than adopting legislation<\/a> that would have addressed those concerns and facilitated worker transition to clean energy jobs, anti-RGGI activists instead began to pursue other options to stop government action to address climate change.<\/p>\n\n\n\n In 2020, the state legislature passed a bill that would prohibit Pennsylvania from joining RGGI<\/a>, although it was ultimately vetoed by Governor Wolf. Undaunted by the veto, conservatives introduced two similar bills in 2021. The legislation never even made it to a vote. While proponents of both the original and the newly resurrected legislation were aware the bills were unlikely to ever become law, their proposals were part of a strategy aimed at \u201csocializing claims<\/a>\u201d to be made in future lawsuits to prevent implementation of RGGI. In particular, the bills\u2019 assertions that the auctioning of emissions allowances is a tax<\/a>, while not ultimately adopted into law, was intended to serve as the foundation of arguments made by RGGI\u2019s opponents in future litigation.<\/p>\n\n\n\n The next step in the fossil fuel industry-funded crusade against RGGI in Pennsylvania saw the realization of the litigation \u201csocialized\u201d by the failed RGGI prohibition bills. As floated in the failed prohibition bills, the lawsuit centered on the argument that the RGGI system of auctioning carbon allowances is a tax<\/a>. On November 1, 2023, the Commonwealth Court of Pennsylvania sided with fossil fuel interests, agreeing that the RGGI system constitutes an unlawful tax<\/a>. As a result, the current state of affairs is that Pennsylvania is unable to enter RGGI. Republican politicians cite<\/a>, in part, the previous legislative attempts to block RGGI as indicative of the ruling\u2019s sound judgment.<\/p>\n\n\n\n THE COMMONWEALTH COURT\u2019S RULING WILL HARM PENNSYLVANIANS<\/strong><\/p>\n\n\n\n The new ruling from the Commonwealth Court, if allowed to stand, will prevent Pennsylvanians from accessing the multitude of benefits enjoyed by RGGI member states. Contrary to fossil fuel fearmongering about RGGI\u2019s negative economic impact, between 2009\u20132017, RGGI states saw a net economic benefit of $4.7 billion<\/a>, including the addition of thousands of jobs. If Pennsylvania was able to join RGGI, it would share in these economic benefits as well. In fact, NRDC models suggest that the auction of carbon allowances by Pennsylvania under RGGI<\/a> could yield an average of more than $200 million per year between 2021 and 2030.<\/p>\n\n\n\n In addition to the overall positive boost RGGI membership would give to the Pennsylvania economy, strategic investment of allowance auction proceeds could improve the overall wellbeing of Pennsylvanians and enrich the state\u2019s communities. Proceeds from RGGI auctions are often invested in clean energy and other benefits to consumers<\/a>, and social programs funded by auction proceeds in other RGGI states include:<\/p>\n\n\n\n \u25cf Weatherizing and renovating homes to make them more energy-efficient; By investing allowance auction proceeds in similar initiatives, Pennsylvania, if it were able to join RGGI, would be able to generate up to a $1.9 billion increase<\/a> in state GDP in less than two decades.<\/p>\n\n\n\n RGGI membership has had significant health benefits<\/a> for citizens of member states as well, all of which would be available to Pennsylvanians if the state was allowed to join RGGI. By reducing the harmful air pollutants that tend to accompany CO2, RGGI has prevented significant numbers of asthma attacks, heart attacks, and other health problems in member states. Furthermore, in those states, retail electricity prices have fallen and acid rain and smog have become far less prevalent. The quality of life for people living in RGGI states is improved by their states\u2019 membership, and by preventing Pennsylvania from joining the Initiative, the Commonwealth Court stripped Pennsylvanians of a healthier future.<\/p>\n\n\n\n THE COMMONWEALTH COURT REACHED THE WRONG CONCLUSION<\/strong><\/p>\n\n\n\n The Commonwealth Court\u2019s decision to block Pennsylvania from becoming a part of RGGI is not only harmful to Pennsylvanians – it also runs contrary to what many legal experts and environmental advocates are saying about RGGI, taxation, and Pennsylvania\u2019s obligations.<\/p>\n\n\n\n Article I, \u00a7 27 of the Pennsylvania Constitution<\/a> guarantees \u201ca right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment.\u201d It also asserts that the state government has a responsibility to \u201cconserve and maintain\u201d those natural resources and elements of the environment for the \u201cbenefit\u201d of all Pennsylvanians, both present and future. Climate change poses a monumental threat to all of these aspects of Pennsylvania\u2019s environment, so in order to fulfill its promise to its constituents, the state has a constitutional duty to act on climate change \u201cas much as it can using existing authority.\u201d Becoming a part of RGGI would be an important step in Pennsylvania\u2019s efforts to satisfy that duty.<\/p>\n\n\n\n This guaranteed right to a well-preserved natural environment has other legal implications for the implementation of RGGI as well. By causing greenhouse gas emissions, polluters are effectively appropriating the part of Pennsylvania\u2019s environment harmed by climate change. Auctioning CO2 emissions allowances, then, is not a tax but a sale of a public resource, just like a government sale of lumber or mineral resources that come from public land.<\/p>\n\n\n\n The argument that auctioning rights to pollute is a sale rather than a tax is not unique to the context of Pennsylvania and RGGI, and it is well accepted in other state courts. In California, the Court of Appeals found that allowance auctions, like those that take place under RGGI, operate as sales, not taxes, because they are \u201cvoluntary\u201d and focused on purchasing a \u201cthing of specific value.\u201d Pennsylvania, like California, should consider the true nature of the transaction that takes place during allowance auctions, recognizing the value in public natural resources and finding that the auctions are sales, not taxation.<\/p>\n\n\n\n A PATH FORWARD<\/strong><\/p>\n\n\n\n The Commonwealth Court\u2019s ruling is not the end of the road for RGGI, and there is a chance that these legal and public policy justifications for the implementation of RGGI in Pennsylvania will still eventually enable it to take force. Governor Josh Shapiro has appealed the ruling<\/a>, and some legal analysts suggest the appeal has a possibility of success<\/a>. However, the state\u2019s RGGI membership faces more obstacles than it did under the previous administration. Governor Shapiro has historically expressed little support for Pennsylvania\u2019s RGGI membership<\/a>, and in the face of opposition from Republicans and high-emissions industry, Governor Shapiro has avoided advocating for Pennsylvania\u2019s RGGI membership and quietly begun searching for \u201calternatives.\u201d<\/a> The Governor\u2019s statement on the appeal reflects this hesitance to endorse RGGI, focusing not on the public health, economic, and climate benefits RGGI would provide to Pennsylvanians but instead centering on preserving \u201c[executive] authority for this Administration and all future governors.\u201d<\/a> The statement goes on to assert that, even if the appeal succeeds and the final roadblocks to Pennsylvania\u2019s RGGI membership are removed, the administration will not commit to allowing the state to join and has urged lawmakers to begin developing an \u201calternative plan\u201d to address climate change.<\/a><\/p>\n\n\n\n Governor Shapiro\u2019s search for an effective alternative has so far been unsuccessful. It remains true that there are no other options to address the climate crisis\u2019 impact on Pennsylvanians that would be as immediately and broadly impactful as RGGI membership. Although it may theoretically be possible to develop a similarly adequate program over the next several years or decades, climate change is harming Pennsylvanians now. RGGI is a ready-made program for addressing those harms, and its powerful benefits are evident in every one of its member states.<\/p>\n\n\n\n The Shapiro Administration\u2019s request for an \u201calternative plan\u201d to RGGI would waste the decades of development that have allowed the regional program to be an efficient driver of climate action. Governor Shapiro\u2019s working group on climate change has reached a \u201chistoric level of consensus\u201d<\/a> to agree that cap-and-trade is a viable strategy for meeting the state\u2019s climate action goals. The cap-and-trade alternatives to RGGI proposed by the working group would require the construction of a new interstate program<\/a> from the ground up – a process that, for RGGI, was completed over a decade ago. In that time, the average global temperature has risen almost half a degree Fahrenheit<\/a>, and it will only continue to rise in the time it would take to develop an \u201calternative plan.\u201d By joining RGGI now rather than wasting years attempting to pull together a completely new system, the Shapiro Administration could address the urgent climate challenges faced by Pennsylvanians today.<\/p>\n\n\n\n The Shapiro Administration\u2019s appeal of the Commonwealth Court\u2019s decision is a step in the right direction, but it is insufficient to address the climate change-driven difficulties that increasingly harm Pennsylvanians. To promote the state\u2019s public health, economy, and environment, the Shapiro Administration should not only zealously pursue its appeal but also ensure the swift implementation of RGGI. Doing so is the best and, currently, only way to guarantee Pennsylvanians\u2019 right to enjoy a well-preserved natural environment and live healthy lives in a state with clean air.<\/p>\n","protected":false},"excerpt":{"rendered":" Carolyn Messer, JD Anticipated May 2024 Climate change is an issue that impacts every region on the planet, and Pennsylvania is no exception. Temperatures in the state have increased by almost two degrees Fahrenheit in the last century, and they\u2019re expected to increase another 5.9 degrees by 2050. These rapidly increasing temperatures have led to corresponding increases in rates of insect-borne illnesses like West Nile Virus and Lyme Disease. Rising instances of severe storms and floods driven by climate change … <\/p>\n
\u25cf Low-interest loan programs for self-funding energy improvements in businesses, farms, non-profits, schools, and local governments; and,
\u25cf Installing and maintaining residential solar panels.<\/p>\n\n\n\n