Chipping away at greenhouse gas emissions - by Susan Bernstein

In Mass., the courts have often sided with activists who have brought suits to push the state to more vigorously enforce and expand programs to encourage reductions in fossil fuel and increases in alternative energy sources and energy savings. Recall the 2016 decision to require the Massachusetts Department of Environmental Protection (MADEP) to set specific levels for reductions in greenhouse gases (GHGs) (Kain v. MA DEP, 474 Mass. 278 [2016]). 

In September, the Supreme Judicial Court of MA (SJC) issued its decision in New England Power Generators Association, Inc., v. DEP et al. The case was brought by various electric companies based on their contention that the Mass. Global Warming Act, MGL c. 21N, §§3 and 4 (GWA), that established declining annual aggregate emission limits of GHG (the cap regulation), did not apply to the electric sector and therefore the Mass. agencies acted unlawfully by promulgating such regulation. The electric companies contended that since they have their own specifically referenced subsection in the law, they are excluded from the sections under which the limits were promulgated for all other sources of emissions. The court disagreed and found that each section complements the other and does not exclude one from the other. The court determined that the agency’s expressed emission limits are amply supported by the essential statutory purpose. A party challenging the validity of a regulation must prove it is illegal, arbitrary or capricious, none of which according to the court, the electric companies proved. 

The goal of the GWA is to reduce GHG emissions to a level that would be at least 80% of the 1990 emission level by 2050, with the electric sector having a specified reduction. The court referenced the 1990 baseline, which level was approximately 94 million metric tons of carbon dioxide equivalent, of which the electricity generators contributed approximately 25.6 million metric tons, while also establishing a request for increasing the level of clean non-emitting electricity, eventually to 80% by 2050. 

Susan Bernstein is an attorney at law, Needham, Mass.