Tuesday, April 16, 2019

EQB Accepts Cap-And-Trade Petition For Evaluation; State Does Have Authority To Adopt A Greenhouse Gas Reduction Program

On April 16, the Environmental Quality Board voted 14 to 5 to accept a rulemaking petition to create a Cap-And-Trade Program for reducing greenhouse gas emissions in Pennsylvania for evaluation.
The vote came after defeating a motion to table any further action on the petition by a vote of 5 to 14 made by Rep. Daryl Metcalfe (R-Butler), Majority Chair of the House Environmental Resources and Energy Committee, who sits on the Board.
The petition was originally submitted in November, but was resubmitted with additional information on February 28 with over 100 groups and individuals on the petition.
The 407-page rulemaking petition asks the Environment Quality Board to establish a market-based cap-and-trade greenhouse gas emission reduction program that eliminates those emissions from major sources by 2052 in Pennsylvania.
The petitioners said these reductions would put Pennsylvania on track to meet the greenhouse gas reduction goals established by the 2015, achieving the reductions that the most recent report of the Intergovernmental Panel On Climate Change indicates are necessary to avoid the worst impacts of climate disruption.
During the Board discussion, Rep. Metcalfe said there is a need to study the economic impact of the petition before the Board takes any action to accept it for study.  He also said DEP should be evaluating whether the petition is in conflict with existing state law and the state constitution.
He said he believed implementing the cap-and-trade program requested by the petition would have no measurable impact on the global climate issue.
Rep. Metcalfe added he believes the petition is an effort to circumvent the General Assembly which should adopt specific state legislation authorizing a greenhouse gas reduction program.  He said the California program on which the petition is based, was the result of specific legislation adopted by their legislature.
Rep. Greg Vitali (R-Delaware), Minority Chair of the House Environmental Resources and Energy Committee who also sits on the Board, said the EQB is only being asked to study this petition and it should be accepted in the face of the urgent, world-wide climate problem.
Timothy Collins, the Board representative of Sen. John Yudichak (D-Luzerne), Minority Chair of the Senate Environment Resources and Energy Committee, said he is voting to accept the petition, but the Senator believes the General Assembly should be setting policy in this area, not the EQB through a petition.
DEP noted the study of the petition will include an evaluation of the economic and fiscal  impact of the proposal, the effectiveness of the cap-and-trade program being suggested, including an evaluation of alternatives that may be less costly.
DEP Secretary Patrick McDonnell noted a recommendation from the agency to the Board  after the evaluation is not a binary decision-- yes or no-- it could include a range of alternative options, not just going along with the cap-and-trade program as suggested.  
One of the options mentioned could be joining the already established Regional Greenhouse Gas Initiative (REGGI) or taking other steps to reduce greenhouse gas emissions. The PA Environmental Council and others have also recommended Pennsylvania join REGGI as did then candidate Tom Wolf in 2014.
DEP has already determined, in recommending the Board consider the petition for study, that the action being suggested by the petitioners is an action the Environmental Quality Board can take under state law and the constitution as required by its petition acceptance policy.
McDonnell underlined that point by saying DEP implements its programs within the laws adopted by the General Assembly and the constitution.
With the acceptance of the petition, DEP now has 60 days to return to the Board with its recommendation on the petition, although that will more than likely be extended because of the complexity of the evaluation required in this case.
The Clean Air Council, one of the petitioners, released this statement on the EQB action by Executive Director Joseph Otis Minott, “Today’s EQB vote was historic.  By accepting our rulemaking petition for a carbon cap-and-trade program, EQB has taken a meaningful step forward in Pennsylvania’s plan to mitigate climate change.  
"The science is clear and overwhelming: our climate is already changing, and we need to aggressively and deliberately reduce greenhouse gas emissions to avoid the worst impacts.  Earlier this year, Governor Wolf ambitiously set the first-ever statewide goal to reduce carbon pollution, and the Council’s rulemaking petition is the only concrete policy on the table that will achieve that goal.  
"As we celebrate today’s progress, we look forward to working with state agencies and stakeholders across Pennsylvania as this landmark process moves ahead.”
Andrew Williams of the Environmental Defense Fund had this comment on the EQB action, "Pennsylvania’s energy sector is among the nation’s dirtiest, and without a comprehensive approach to carbon pollution it will be stuck at a competitive disadvantage compared to its neighbors. A binding, declining limit on carbon pollution could harness the power of the market to spur zero-carbon energy growth and drive down consumer costs.”
“The acceptance of the petition is a significant step toward a durable, market-based solution to curb power sector emissions Pennsylvania, the third-largest emitter of greenhouse gases in the nation.
“The foundation of any sustainable, long-term energy strategy in Pennsylvania is a binding, declining limit on carbon emissions. Developing a carbon market fosters the flexible, low-cost solutions that cut pollution and spur deployment of zero-emission technologies. Clean Air Council brought together a powerful coalition of citizens across the state to ensure Pennsylvania isn’t left behind as other states step up with real climate solutions.”
Sen. Gene Yaw (R-Lycoming), Majority Chair of the Senate Environmental Resources and Energy Committee,  issued this statement-- “I have serious concerns with respect to the rulemaking petition submitted by the Clean Air Council, Widener University Commonwealth Law School Environmental Law and Sustainability Center and other petitioners.  
“Quite frankly, the Pennsylvania Department of Environmental Protection (DEP) does not have the statutory authority to undertake such a rulemaking regulating greenhouse gas emissions. This action intrudes on the General Assembly’s exercise of powers, and I believe action on this rulemaking would set a dangerous precedent moving forward.
“Any revenues collected through this carbon pricing scheme would essentially impose an unconstitutional tax, a tax which has not been authorized by the General Assembly.  
“I’d echo the concerns expressed by the Pennsylvania Chamber of Business and Industry.  Have the petitioners, or those supporting this measure, given any consideration to the impacts this petition would have on our workforce, our economy, our residents and households?  
“This petition would have far-reaching consequences on our economy, consumer costs and job creators which have not been adequately considered by the Department.
“I believe there are ways to reduce carbon emissions and my Committee will continue to focus on those technologies moving forward, but we do it in a way that’s responsible and sensitive to our system of government.  
“I’m open to ways on what that may look like.  This rulemaking petition is an overreach. I have voted “no” and will explore all options to ensure that the Department and EQB adhere to our rule of law.”
Sen. John Yudichak (D-Luzerne), Minority Chair of the Senate Environmental Resources and Energy Committee, issued this comment-- “Today, at a meeting of the Environmental Quality Board (EQB) — of which I am a voting member, I voted to accept for consideration a rulemaking petition submitted by the Clean Air Council to adopt a proposed regulation establishing an economy-wide cap-and-trade program to reduce greenhouse gas emissions.
“ The submitted petition passed this procedural step, and now the proposed regulation goes to the Pennsylvania Department of Environmental Protection for evaluation.
“However, I believe that the EQB rulemaking petition process is not the appropriate way for environmental policy of this breadth to be made, regardless of the validity of the idea.  
“In our system of government, the elected officials of the General Assembly make the laws. And policy proposals that would touch every aspect of our state economy, such as this, must be considered by those of us directly accountable to the citizens.
“To that end, soon I will be introducing a resolution requiring the Legislative Budget and Finance Committee to conduct an in-depth study of how such a cap-and-trade system would work in Pennsylvania.
“I hope that this will shift the discussion to its appropriate branch of government, and that it will provide the General Assembly with the information it needs to move forward in addressing the devastating effects of climate change.”
The PA Chamber of Business and Industry issued this statement on the Board’s action-- “This regulation, if enacted, would be among the most costly and sweeping regulatory programs ever implemented by state government,” said PA Chamber President and CEO Gene Barr.  “As evidenced by the deliberations of the Environmental Quality Board today, many questions remain unanswered – including the underlying constitutionality of the Department of Environmental Protection's authority to implement such a measure. It is imperative the department proceed deliberatively and carefully weigh the costs, legality and effectiveness of this proposal.”
“As the petition moves further along the review process, we trust that DEP will address the various economic concerns and regulatory and policy issues we raised in our joint letter to the members of the board,” Barr added.
In early April, the PA Chamber joined more than a dozen business and industry groups in sending a letter  to the board raising a number of policy and regulatory concerns with the petition – including its constitutionality and the impact that such a program would have on the state’s economy.
Sulfur Limits
The EQB also voted to approve a proposed regulation for public comment to reduce the current limit of 500 ppm of sulfur in heating oil to 15 ppm.
Manganese Standard
The Board held an executive session to discuss the court action filed by Senators Scarnati and Yaw over adoption of a water quality standard for manganese.
May Meeting Canceled
The May meeting of the Board has been canceled.
For more information and available handouts, visit the Environmental Quality Board webpage.  Questions should be directed to Laura Edinger by calling 717-772-3277 or sending email to: ledinger@pa.gov.

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