Attorneys issue legal demand to Pa. to cut carbon emissions across the economy

Pittsburgh Post-Gazette. Laura Legere. 2.5.26

Pennsylvania must act to require industries across the economy to cut - and pay for - climate-warming pollution they release, a group led by prominent state environmental attorneys said in a legal demand to state regulators on Thursday.

The coalition wants to compel Pennsylvania's environmental rule-makers to create a program that puts a price and shrinking cap on allowable greenhouse gas emissions that would apply to a broad swath of pollution sources, including power plants, coal mines, factories and transportation fuels.

The state Environmental Quality Board agreed to consider the group's petition nearly seven years ago, but regulators at the Pennsylvania Department of Environmental Protection never released a study of the proposal as required.

The petitioners - environmental organizations, businesses, municipalities, schools and faith groups - did not push the issue while the state was pursuing a cap-and-trade program for one major source of emissions, power plants, through the Regional Greenhouse Gas Initiative.

But Pennsylvania ended that effort in November as part of a budget agreement between Democratic Gov. Josh Shapiro and Republicans in the General Assembly, leaving the state without any comprehensive program for addressing carbon dioxide and other pollution that has been shown to be a factor in climate change.

The death of the RGGI rules means "we are now back to square one," the coalition wrote in its demand.

"Worse, we - all of us - have lost seven years, time that could have been spent more fully developing a lower-cost and more reliable clean energy economy. This is unacceptable."

The lead authors of the demand are Chester County-based climate and environment attorney Robert McKinstry Jr. and John Dernbach, professor emeritus at Widener University Commonwealth Law School.

Among the 15 other signers are the Pennsylvania environmental advocacy groups Clean Air Council and PennFuture; Joshua Ash, director of the Environmental Law & Policy Clinic at University of Pittsburgh School of Law; Penn State oceanography professor Raymond Najjar; as well as other experts in ecology, economics, law and public health.

The demand said some of its signers are prepared to file a lawsuit if regulators do not act quickly.

The cap-and-trade proposal is remarkable in a major fossil fuel- and electricity-producing state where natural gas plays a significant economic role and fossil fuel industries have powerful influence.

Pennsylvania is also a major source of planet-warming gases, releasing almost 1% of the world's greenhouse gas emissions, the coalition said, "more than most other states and nations."

At the same time, Pennsylvanians are bearing the effects of a changing climate, including hotter temperatures, intensifying storms and worsening flooding, according to the state's most recent Climate Impacts Assessment. The cost is reflected in residents' rising bills for insurance and utilities.

The group argues that Pennsylvania is required by its constitution and air pollution law to reduce emissions of planet-warming gases to limit their threat to people and the environment.

Pennsylvania's constitution makes the right to a clean environment for current and future residents fundamental, and the demand argues the state is failing in its duty to protect that right.

Getting to net zero

Cutting greenhouse gas emissions to net zero by 2050 is Pennsylvania's official goal as part of its membership in the U.S. Climate Alliance, which it joined in 2019 under then-Gov. Tom Wolf.

But even if the state adopts every measure recommended in its 2024 Climate Action Plan - including major changes like decarbonizing the electric grid, powering buildings and industry with electricity, and transitioning to electric or zero-carbon cars and trucks - it would only reach 80% of its goal by midcentury.

The petitioners argue the state can drive those changes more completely and cost-effectively through a holistic, market-based approach. California and Washington have adopted similar economy-wide programs.

The proposed cap-and-trade program, which the group has named SAVER, for Stability and Affordability Via Emissions Reductions, would gradually reduce emissions of greenhouse gases across the Pennsylvania economy over the next three decades.

The amount of allowable emissions would decline each year until they reach net zero in 2052.

Most of the covered companies would buy allowances at auction, and they would have an economic incentive to make steeper emissions reductions and earn allowances they could sell to others.

Opponents of the petition argue that such a cap-and-trade program could not be created without the clear direction of the General Assembly, in part because the auction allowances could be considered a tax that only the Legislature can impose.

Before the petition was first accepted for study by state regulators in 2019, a coalition of Pennsylvania business groups urged the board not to take it up without further input, given "the potentially massive economic impact to the Commonwealth's households and businesses."

Lessons learned from RGGI

The yearslong debate over whether Pennsylvania could join the Regional Greenhouse Gas Initiative without a new law from the General Assembly hinged on exactly those questions.

RGGI is an existing regional program that aims to reduce carbon emissions from the power sector in 10 Northeastern states, which have used the auction proceeds to fund clean energy programs, energy efficiency and electric bill assistance.

In 2023, Pennsylvania's Commonwealth Court ruled that carbon allowances included in Pennsylvania's RGGI rules amounted to a tax imposed by regulators unconstitutionally. The state Supreme Court was considering that question on appeal when the RGGI rules were scuttled in November.

When the Supreme Court dismissed the appeal as moot last month, it vacated the Commonwealth Court's ruling that the auction allowances were a tax, leaving the question unresolved.

The attorneys backing the cap-and-trade petition argue that allowances are not a tax but a pollution control measure authorized under state and federal law. Their sale would be equivalent to selling timber or natural gas harvested from state forests, they said.

A past effort to get Pennsylvania to address carbon emissions through a citizens petition failed, both at the Environmental Quality Board and in court.

But Pennsylvania's creation - and defense - of its RGGI regulation may change the calculus, even though it never took effect. In the process, the commonwealth developed evidence and made determinations for why such a carbon-cutting program is both legal and necessary.

The demand issued on Thursday draws extensively from those findings.

In the meantime, the petition's backers have learned several lessons from the bruising fight over whether Pennsylvania should participate in RGGI.

First, that an economy-wide cap-and-trade program should allow for direct free allowances to be allocated to reduce customers' electricity bills and to fund public transportation.

Direct free allowances could also be allocated to some industries that might otherwise lose jobs or business to other states that don't have a carbon price.

Second, that proceeds from the auctions should be deposited in a fund with clear rules for how the money can be spent to protect the environment, reduce climate pollution and promote clean energy.

The Environmental Quality Board is next scheduled to meet on March 10.

Link: Attorneys issue legal demand to Pa. to cut carbon emissions across the economy | Mahoning Matters

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