Connecticut has mandatory greenhouse gas reduction targets, but are they enforceable?
Climate activists are calling on lawmakers to give citizens the explicit right to take state agencies to court if they are not meeting obligations under Connecticut’s 2008 Global Warming Solutions Act.
“We have laudable goals in the legislation,” said Shannon Laun, a staff attorney with the Conservation Law Foundation, “but if there’s no enforcement mechanism, how do you ensure that the state is accountable?”
Connecticut has a longstanding law that grants any citizen or organization the right to bring legal action against the state in order to protect “the air, water and other natural resources of the state from unreasonable pollution, impairment or destruction.” Activists want to ensure that authority, in place since 1971, extends to the state’s climate targets.
Legislation is still being drafted, but the intent is to come up with something that says in effect, “if you are failing to develop the plans, adopt the regulations or do the analyses, that is a de facto violation of the state Environmental Protection Act,” said Charles Rothenberger, climate and energy attorney for Save the Sound.
Such lawsuits wouldn’t be eligible for monetary damages, but would “just direct the state to do what they’re supposed to do,” he said.
Connecticut is already falling behind on its emissions reduction goals, he noted. A greenhouse gas inventory released by the Department of Energy and Environmental Protection last fall showed that transportation and building emissions are on the rise.
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Both Rhode Island and Vermont have enforcement provisions in their much newer climate laws.
Rhode Island’s Act on Climate, passed last year, authorizes any resident or organization to bring a civil action to enforce the law, which sets a goal of net-zero emissions by 2050.
Anyone intending to take such action must notify the government entity of the alleged violation at least 60 days before filing in Superior Court. No action may be brought before 2026.
Vermont’s Global Warming Solutions Act, passed in 2020, authorizes any person to take legal action if the Secretary of Natural Resources fails to adopt or update rules necessary or sufficient to meet the law’s greenhouse gas reduction mandates.
That provision was one reason why Gov. Phil Scott vetoed the act, saying in a letter to lawmakers that it would lead to “long, costly court battles.” But Vermont Attorney General T.J. Donovan defended the measure, saying in a statement at the time that it “provides the public with tools to hold government accountable, and hold politicians accountable for their rhetoric and their promises.”
Rhode Island Gov. Dan McKee raised similar concerns, saying he feared the enforcement provision might lead to frivolous lawsuits. But that state’s attorney general, Peter Neronha, also came to the provision’s defense, noting that citizen suit provisions exist at the federal level in both the Clean Air Act and Clean Water Act. McKee ultimately signed the bill.
Jennifer Rushlow, director of the Environmental Law Center at Vermont Law School, said states are smart to include such enforcement provisions in their climate laws, rather than write them in a way that is “just aspirational.”
“What if the governor that signs the climate law into being isn’t in office next term, and the subsequent administration wants to find a way not to do what the climate law says?” Rushlow said. “You need an outside enforcer, sort of a fourth branch of government.”
In order for those legal challenges to be at all successful, however, she said, climate laws must also require the appropriate agency or agencies to promulgate regulations specifically aimed at meeting the mandates. Such a requirement was crucial to the success of a landmark climate lawsuit she helped bring against the Massachusetts Department of Environmental Protection in 2014.
It was one of the few successful examples of causes of action for climate litigation. Brought by four teenagers and two advocacy organizations, the suit accused the department of failing to promulgate regulations compliant with that state’s Global Warming Solutions Act.
After losing at the Superior Court level, the plaintiffs sought a review from the state’s Supreme Judicial Court. In 2016, the court reversed the lower court ruling, saying the act’s “unambiguous language” requires the department to promulgate regulations establishing limits on multiple greenhouse gas emissions sources.
The ruling might have gone otherwise without that language.
“Anything that’s not codified in law is going to be really hard to enforce,” said Rushlow, who argued the case for the Conservation Law Foundation, where she was then an attorney.
Connecticut activists are hoping to strengthen the state’s climate law in that respect as well. The law’s current language requires the Department of Energy and Environmental Protection to develop a schedule of recommended regulatory actions every three years. But it doesn’t require the agency to adopt them; rather, it says the commissioner “may” adopt regulations to implement the act’s provisions.
“We want to make that a little more explicit,” Rothenberger said, “and say the agency has the authority and the obligation to adopt regulations, policies and programs that will ensure that the state meets its greenhouse gas reduction targets.”