Claim that Pennsylvania weather program was illegally delayed is moot, court says

  • Rachel McDevitt
PXL 20220505 145848574

Rachel McDevitt / StateImpact Pennsylvania

The Pennsylvania Judicial Center, which houses the Commonwealth Court, is seen here on May 5, 2022.

The Commonwealth Court is throwing out the Department of Environmental Protection’s claim that a landmark climate regulation was illegally delayed.

The opinion released Thursday does not resolve the question that prompted the lawsuit: how long lawmakers have to dispute the new rules.

The rule to allow the state to join the Regional Greenhouse Gas Initiative cleared most regulatory hurdles by the end of 2021.

But the Legislative Reference Office, which publishes regulations to make them official, refused to publish the rule immediately.

By law, the House and Senate each have 30 calendar days or 10 legislative days, whichever is longer, to vote on a disapproval resolution to prevent a new rule from taking effect.

The Republican-controlled legislature said those terms come one after the other. The Wolf Administration argued that the review periods are supposed to be concurrent.

The office agreed with lawmakers.

The DEP’s lawsuit overcame the legislative delay and the rule was published on April 23, 2022. Because the rule is now official, the court says the case is moot and any judgment entered would have no effect.

Robert Routh, a policy and regulatory attorney for the Clean Air Council, said that’s an unsatisfactory answer. He worries that lawmakers will continue to use his reading of the regulatory process to delay important regulations.

“This problem could be repeated with another environmental regulation, a protective environmental regulation, or a climate regulation that the legislature disagrees with,” Routh said.

Widener University law professor John Dernbach said the issue of the timetable for disapproving the regulations must be resolved.

“For those of us who are thinking about the merits of the RGGI regulation, I think we are inclined to support the view that the disapproval process should take place at the same time rather than consecutively, because the governor should have the ability to do their job without prolonged delay or obstruction by the legislature,” Dernbach said.

DEP said it does not comment on litigation. Mike Pavlick, deputy director of the Legislative Reference Office, said they are reviewing the decision.

The opinion in this case does not affect the state’s attempt to join RGGI, a program among 11 other eastern states that aims to reduce carbon dioxide emissions from power plants.

Dernbach said that now that this case is over, it will allow more attention to be paid to RGGI’s merits.

A separate case brought by industry groups challenging the constitutionality of RGGI is still awaiting a court decision, keeping participation in the program frozen.

Under the RGGI, power plants have to pay for every ton of CO2 they emit. That money goes to the state, where it can be used to boost clean energy and energy efficiency programs to help reduce emissions.

An estimate from the Independent Fiscal Office says the state could collect $800 million per year from the program, if the CO2 price stays around $13/ton. DEP projects that revenue will decline over time as emissions decline.

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