With Much of Climate Policy in State Hands, Will Commitments Be Enforced?

AP Photo/Charles Krupa

Opponents of Kinder Morgan's proposed Northeast Energy Direct pipeline protest on Boston Common across from the Statehouse in Boston, Wednesday, July 30, 2014. 

Less than a month after the Paris negotiations concluded with pledges by virtually every nation to reduce their greenhouse gases, a pair of lawsuits in Massachusetts and Rhode Island will test whether those states’ commitments to scale back their emissions are legally enforceable. The suits, brought by the Conservation Law Foundation (CLF) and other environmental groups, will help determine whether state laws that set greenhouse gas reduction targets can be used to compel those states to cut emissions and put the brakes on new fossil-fuel infrastructure.

With Congress unable to pass meaningful reforms, state-level policy has become a critical piece of U.S. action on climate change. Just how far states will go to implement and enforce meaningful change, however, remains an open question.

“This is a bellwether case,” says CLF President Bradley Campbell. “If laws like these are not implemented and enforced, we don’t stand a chance of meeting the very necessary targets set in Paris.”

The case in Massachusetts, which headed to the state’s Supreme Judicial Court on Friday, centers on the 2008 Global Warming Solutions Act, one of the most ambitious state-level climate bills passed over the last decade. The law committed Massachusetts to reduce carbon emissions by 25 percent below 1990 levels by 2020, and 80 percent by 2050, goals far exceeding the U.S. commitment hammered out in Paris. The law mandated that by 2013, the state had to implement new regulations to reach these goals.

But three years later, the state’s Department of Environmental Protection (MassDEP) has issued no new regulations. Such lack of action puts the state in danger of falling far short of its carbon reduction mandate, say the case’s plaintiffs, which include CLF, the Mass Energy Consumers Alliance, and four teenaged members of Our Children’s Trust.

A year after Massachusetts missed its deadline the nonprofit Environmental League of Massachusetts released a report finding that the state was on track to reduce emissions not by 25 percent but just 20 percent by 2020. The CLF’s own estimates have the state barely reaching 18 percent by that year (to say nothing of the far more ambitious 2050 goal).

“The Global Warming Solutions Act is a landmark law, but Massachusetts’s record in implementing it has been dismal,” says Campbell. “The state has not promulgated any of the regulations that the law requires.”

Exactly what the law does require is at the heart of the case. At a Superior Court hearing last March MassDEP argued that the emission goals outlined in the 2008 law represent “aspirations” rather than concrete, enforceable caps.

It’s a weak defense, says Stephen A. Richmond, an environmental lawyer and a principal of Beveridge & Diamond, P.C., in Boston, who is uninvolved in the case. “When I look at the language [of the law], it seems clear,” Richmond says. “I’m thinking the court will side with CLF.”

The case in Rhode Island centers on a similar law but focuses on one source of emissions in particular: a natural gas plant planned by Invenergy in the state’s northwest corner that would be New England’s largest. The proposal, CLF alleges, violates the 2014 Resilient Rhode Island Act by not fully accounting for the plant’s impact on the state’s carbon reduction goals. Like Massachusetts’s Global Warming Solutions Act, the Rhode Island law set ambitious targets to reduce the state’s carbon footprint.

Invenergy’s plan, which the company unveiled in July, won the backing of Democratic Governor Gina Raimondo, who hailed it as a step away from coal and oil. But the plan has drawn fire from local green groups, including the Fossil Free Rhode Island and the state’s Sierra Club chapter, that say the plant could make the state even more dependent on fossil fuels in the coming decades. On January 3, CLF filed a motion to dismiss Invenergy’s application, and public hearings are expected to begin in the coming weeks.

The outcome of both cases may determine the direction climate action ultimately takes at the state level. “New England and particularly Massachusetts and Rhode Island have rivaled California in their leadership on greenhouse gas reductions,” says Campbell. “The risk now is that if these newer laws are not implemented, we will start to backslide. If these laws aren’t enforced, what we will see is that Big Gas will simply replace Big Coal and Big Oil.”

Even if the climate laws in Massachusetts or Rhode Island are adequately enforced, of course, they can only go so far in reducing carbon emissions in those states. A case-in-point is the proposed Northeast Energy Direct pipeline, a project, over which the federal government has jurisdiction, that may make Massachusetts’s carbon reduction plan still harder to realize. If approved, the pipeline would snake across 415 miles of western Massachusetts and southern New Hampshire. Kinder Morgan, which officially applied for federal approval on November 30, says the project will pump an additional 200 million cubic feet of fracked natural gas into the Northeast. Not surprisingly, it has drawn fire from climate advocates across New England.

In a December 30 letter to Federal Energy Regulatory Commission Chairman Norman C. Bay, Massachusetts State Senate President Stan Rosenberg declared that the project “flies in the face of the Commonwealth’s emission reduction goals” and would make it “significantly more difficult and costly for Massachusetts to transition to a clean energy future.” The heart of the problem, he added, was a “disconnect” between green-minded lawmakers and federal regulators that oversee our energy infrastructure.

While the recent U.S. commitment in Paris may help to bridge that disconnect, action at the state level will remain critical to redeeming the Obama administration’s commitments. The president’s Clean Power Plan, unveiled in August, mandates significant emission cuts in the energy sector nationwide. Crucially, the plan chiefly relies on state-level actions to implement and enforce the new rules.

With a large majority of states in Republican hands, however, that may be a difficult prospect. Already some 26 states have sued the Environmental Protection Agency over the plan, and Republican leaders have talked openly about pursuing a “just say no” approach—that is, doing nothing and daring the EPA to respond.

While the EPA reserves the right to intervene in states that do not meet federal standards (as it has with the 1963 Clean Air Act), exactly how much power the EPA has to compel states to act is an open question. Moreover, because the administration’s plan depends so heavily on executive authority, a GOP presidential victory this November will likely mean that enforcement in noncompliant states may largely depend on what green groups are able to win in court—assuming the plan isn’t discarded altogether.

But the real issue, says Campbell, goes well beyond the EPA’s new standards. While Massachusetts and Rhode Island have already gone much of the way toward implementing the rules—much further than many other states—avoiding the worst of climate change will require quite a lot more. The agreement in Paris, after all, didn’t even get close to the actions needed to avert catastrophic warming over the next century.

“Clearly the Paris accords require us to do much more than the Clean Power Plan,” says Campbell. “Given the gridlock in Congress on climate issues, additional progress will depend very much on enforcement of laws at the state level.”

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