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The Massachusetts Supreme Judicial Court unanimously affirmed the state’s authority to regulate greenhouse gas emissions from power plants.
Massachusetts clean energy advocates say a unanimous court ruling last month likely closes the door on fossil fuel electricity in the state.
“It really means that the end of fossil fuel electricity in Massachusetts is written in stone,” said David Ismay, a senior attorney with the Boston-based Conservation Law Foundation.
Massachusetts is widely considered a leader in making the transition to clean energy, and the state’s Supreme Judicial Court in its ruling last month affirmed the state’s authority to regulate greenhouse gas emissions from power plants.
At issue were state regulations that require power plants to buy credits for every ton of carbon dioxide they emit. The total number of credits available will decline each year. At the same time, utilities will be required to source an increasing amount of energy from sustainable sources.
The rules were created as part of the implementation of the Global Warming Solutions Act, a 2008 law intended to reduce greenhouse gas emissions in the state by 80 percent by 2050.
The New England Power Generators Association challenged the regulations on several grounds. The group claimed the section of the law that calls for carbon reductions doesn’t apply to power generators because another section already creates specific guidelines for the electric sector. And it argued the rules could increase emissions by pushing power suppliers to source energy from less clean out-of-state generators.
The court, however, ruled that the section was clearly intended to complement rather than override the other guidelines. And the evidence that emissions would increase wasn’t strong enough, the decision says.
“Obviously we’re very disappointed in the court’s ruling,” Dan Dolan, president of the power generators association.
The regulations are likely to force some plants to limit their operations, he said, which could be problematic for some generators. “If these plants don’t operate and don’t run, they don’t get paid,” he said. “For some of these plants, the regulations will have a significant economic impact.”
Clean energy advocates are optimistic that the court’s analysis of the law leaves little room for future challenges to the carbon-capping regulations. The language and tone of the decision, they say, make clear the that the seven-judge panel takes the dangers of climate change seriously.
“It sends a clear signal that the SJC … is going to give the Department of Environmental Protection great flexibility in designing and enforcing their regulations,” said Dylan Sanders, a lawyer with Boston firm Sugarman Rogers, who has professional expertise in environmental law. “It’s sending a clear signal that any challenges face an uphill battle.”
This case joins an earlier decision involving the Global Warming Solutions Act, Kain v. Department of Environmental Protection. In 2016, a group of teenagers, working with Sanders, filed a complaint arguing that the state had not done enough under the Global Warming Solutions Act to reduce greenhouse gas emissions. This failure, they argued, would contribute to climate change and rising sea levels which would affect their future health and financial prospects.
The SJC ruled in the plaintiffs’ favor.
When taken with the ruling in the NEPGA case, the decisions reinforce a sense that the court stands behind the Global Warming Solutions Act, Ismay said. “This is the second unanimous SJC decision upholding that emissions reductions are legally enforceable, upholding that commands to agencies are for real,” he said.
The precedent will be particularly relevant should the state’s municipal light companies choose to challenge whether the law applies to them, Ismay said. While most of the state is served by investor-owned utilities National Grid and Eversource, 41 Massachusetts communities own and operate their own power companies, supplying 15 percent of the state’s power. Traditionally, the municipal companies have been exempt from some regulations that apply to the large utilities.
The municipal light companies have argued that the Global Warming Solutions Act does not apply to them because municipal operations are not specifically cited in the law. While the municipal operations were not included in the initial regulations, it is likely the state will attempt to apply the rules to them in the future. The SJC decision makes these attempts more likely to succeed, Ismay said.
“Their argument, I don’t think survives this decision,” he said.
For the NEPGA, one aspect of the ruling offers hope. The association had contended that a provision of the law prohibits regulations beyond the end of 2020. The court found that the law does allow regulation beyond that time, but that “the department was expected and required to promulgate new regulations at that time, based on updated information.”
For power generators, this new regulatory process will offer a chance to push their case again. Particularly, Dolan said, he would like to see greater clarity in the rules regarding how unexpected circumstances will be dealt with. In January, he noted, the state experienced an extreme cold snap that forced some facilities to use most of their allowance before the first month of the year was over.
“What is the mechanism to deal with that?” Dolan asked. “The current regulations are pretty cumbersome.”
Meanwhile, environmental advocates are not hesitating to embrace the ruling and what it might mean for the future of fossil fuel-burning power plants in Massachusetts.
“It is a good thing from a climate change perspective,” Sanders said. “We can no longer afford to pretend that we can continue business as usual.”