Our Perspectives on the Latest Issues
Earlier this week, a group of state legislators held a press conference in Harrisburg to unveil new legislation that challenges Gov. Tom Wolf’s authority to enter into a partnership like the Regional Greenhouse Gas Initiative (RGGI).
These bills—Senate Bill 950 and House Bill 2025—make the outlandish claim that “no statutory or constitutional authority currently exists that authorizes a State agency to regulate or impose a tax on carbon dioxide emissions.” This is simply wrong and misleading.
Pennsylvania’s Constitution is clear saying that our “public natural resources are the common property of all the people” and that the Commonwealth act as trustee to “conserve and maintain” those resources. The real constitutional question is not whether the Commonwealth may act, but how any legislator could justify that allowing polluting industries to dump their waste products into our air for free is in keeping with their duty to conserve natural resources for our benefit.
There is also explicit statutory authority to regulate carbon pollution. The Air Pollution Control Act (APCA) gives the Environmental Quality Board—the organization that promulgates environmental regulations in Pennsylvania—the power and the duty to “[e]stablish and publish maximum quantities of air contaminants that may be permitted under various conditions at the point of use from any air contaminant source in various areas of the Commonwealth so as to control air pollution.” That is, essentially, what Governor Wolf’s Executive order requires. The fact that the rule will have a market-based component allows more flexibility for the regulated community, lowers compliance costs, and can generate revenue that can be invested in complementary programs, but the core of the program is a cap on carbon emissions.
Attempts to characterize compliance costs as a tax versus a fee is a strawman argument when, in reality, Governor Wolf’s Executive Order doesn’t expressly require either. The executive order only says that the proposed regulation will “provide for the annual or more frequent auction of carbon dioxide emissions allowances through a market-based mechanism” and that such allowances “may be traded with holders of allowances from other states.” The legislature could pass bills allowing for more options in how any auction revenue is expended, but even without legislation the DEP has the ability to collect emission fees and use them for certain purposes.
These bills are equally outlandish when they say “no statute...authorizes the [administration] to adopt regulations, implement a policy or take any other action to authorize the Commonwealth to join or participate in a State or regional greenhouse gas cap-and-trade program.” In fact, APCA clearly states that the Department of Environmental Protection may “[c]ooperate with the appropriate agencies of the United States or of other states or any interstate agencies with respect to the control, prevention, abatement and reduction of air pollution,” and this would be the latest of several cap-and-trade systems the DEP has implemented.
The Department of Environmental Protection has used market-based programs to control emissions a number of times, and we expect that experience will be reflected in their proposed regulation. The Legislature attempting to delay the process with this legislation serves no purpose but to increase pollution.