September 4, 2018

Mass. courts uphold DEP authority on electric emissions

The state's highest court on Tuesday upheld a state department's authority to impose a cap regulation establishing declining aggregate greenhouse gas emissions on power plants, dismissing arguments raised by an industry group.

In a ruling written by Justice Scott Kafker, the court said the Department of Environmental Protection's determination that it must impose emissions limits on the electricity sector in order to reach statutory requirements of the Global Warming Solutions Act is "amply supported." The act requires statewide greenhouse gas emissions to be reduced by 2050 to 80 percent below 1990 levels, with the state expected to hit interim reduction targets along the way.

"Given that the electric sector is one of the largest in-State greenhouse gas emission sources, it would make little to no sense for the Legislature to have excluded it from the critical emission reduction requirements ... " the court wrote, adding that the law specified "no express exclusion of the electric sector."

The plaintiffs, the New England Power Generators Association and GenOn Energy Inc., argued the department exceeded its authority, that the cap will increase rather than decrease statewide emissions due to out-of-state electricity imports, and that a sunset provision of the act prohibits additional regulations after Dec. 31, 2020.

"We conclude that none of these arguments is meritorious and, accordingly, uphold the Cap Regulation," the court wrote.

A multi-state Regional Greenhouse Gas Reduction Initiative to reduce power plant emissions is "not alone sufficient to satisfy the purposes" of the act, the court ruled, adding, "The Act is designed to go well beyond business as usual in terms of reducing emissions: to upend, rather than to uphold, the status quo. The electric sector is no exception."

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