Pennsylvania’s long-delayed membership in the Regional Greenhouse Gas Initiative that would require fossil fuel-burning power plants to pay for carbon dioxide emissions was the subject of arguments Tuesday before the state Supreme Court.
The program, known as RGGI, established a carbon credit auction for electricity producers in 11 northeast states to pay for the right to emit carbon dioxide. The money received would go to each state for uses, ranging from utility assistance and energy efficiency projects to subsidies for alternative energy.
Gov. Tom Wolf entered the compact in 2022 over the objections of Republican state lawmakers. They raised concerns it would increase electricity prices, hasten the closing of the commonwealth’s remaining coal power plants, and not reduce carbon emissions overall, but simply force them into other states.
In a legal challenge to the program’s constitutionality, GOP leaders in the House and Senate contended the requirement to buy carbon credits was an impermissible tax. A Commonwealth Court panel of five judges agreed.
In its decision, the appellate court said that Pennsylvania’s participation in RGGI must be approved through the General Assembly and that the state Department of Environmental Protection (DEP) does not have the authority to impose a tax.
Gov. Josh Shapiro’s administration appealed, with the DEP, arguing that the commonwealth’s membership in RGGI is authorized by the state’s Air Pollution Control Act (APCA). The law empowers the state to enact rules and regulations to reduce pollution, including establishing fees used to eliminate air emissions.
Several nonprofit citizens rights and environmental groups, including Penn Future, the Sierra Club, the Clean Air Council and the Environmental Defense Fund, moved to intervene in the appeal. They argue the Commonwealth Court wrongly decided the case because it failed to consider the DEP and Environmental Quality Board’s obligations under the Environmental Rights Amendment (ERA) to the state constitution. The groups also back the DEP’s argument that the agency is empowered to establish fees to enforce the APCA.
Adopted in 1971, the ERA requires the commonwealth to preserve public natural resources for the benefit of all people. It’s considered one of the strongest such constitutional protections in the nation, according to PennFuture.
Since the Commonwealth Court’s decision in 2023, Shapiro has introduced a Pennsylvania-focused alternative to RGGI called the Pennsylvania Climate Emissions Reduction Act (PACER) that he said would leverage the commonwealth’s status as an energy exporter to fund carbon-neutral energy development.
Sen. Carolyn Comitta (D-Chester), who plans to introduce legislation to establish PACER, said Shapiro’s alternative was developed in collaboration with Republican lawmakers and energy companies. Comitta said the Supreme Court case and RGGI would make the Supreme Court case moot, but GOP lawmakers have said the plan falls short of their goals to reduce energy costs and ensure reliable electricity supplies.
