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What Comes Next in Pennsylvania's Efforts to Join RGGI?

In October of 2019, Governor Wolf issued an executive order to begin the process of joining the Regional Greenhouse Gas Initiative (RGGI). Through this program, Pennsylvania will cooperate with other states in the northeast to cap the emissions of carbon pollution from fossil fuel electric generation because, as the Governor said at the time, “climate change is the most critical environmental threat confronting the world, and power generation is one of the biggest contributors to greenhouse gas emissions.”

While the Governor started the process with an executive order, actually joining RGGI requires passing a new regulation: the CO2 Budget Trading Program.

Even with the Governor’s executive order, regulations don’t just happen. Pennsylvania’s Regulatory Review Act and Commonwealth Documents Law create a detailed program of review, checks, and balances, which often takes 18 to 24 months to complete. With the RGGI rule, the Pennsylvania Department of Environmental Protection (DEP) is 19 months into the process.

The last major milestone was at the end of 2020 when the public was invited to comment on the proposed version of the rule. The DEP took 32 hours of testimony from 449 people and accepted 14,038 written comments. The vast majority of comments supported moving forward, and, as expected, there were also a number of recommendations for updates and clarifications.

The DEP considered all of that input from residents and updated its proposal accordingly. This language—known as the “draft final-form rulemaking”—was just presented to the Air Quality Technical Advisory Committee, the Small Business Compliance Advisory Committee, and the Citizens Advisory Council. All three of these organizations voted to endorse the rule and move forward.

While it’s encouraging these organizations endorsed the DEP’s plan, these votes were advisory in nature. The vote that really counts is expected to happen this summer when the DEP presents the complete rulemaking package, including responses to all the public comments, to the Environmental Quality Board (EQB) for formal approval.  

EQB approval is a big step, but even that doesn’t end the review process. After that vote the entire package must be delivered to the Independent Regulatory Review Commission (IRRC) and the Environmental Resources and Energy committees in both the state Senate and the House of Representatives.  

IRRC is a panel of five members appointed by the Governor and legislative branch who review regulations and advise whether or not the Regulatory Review Act criteria have been met, and if it is in the best interest of Pennsylvania to proceed. The panel will consider the RGGI rulemaking at their next public meeting that is at least 30 days after they receive the package. 

If IRRC votes to approve the rule, the process moves to the next step. If IRRC votes to disapprove the rule, the DEP has 40 days to resubmit or withdraw the package. The DEP isn’t actually required to change anything in response to IRRC’s concerns, but the agency needs to explain its decision not to make changes and IRRC will get another chance to consider the rule.  A vote to disapprove will slow the process, but IRRC doesn’t have the authority to stop a rulemaking from proceeding. The result of a second vote, no matter what the outcome, is simply reported to the committees.  

In most cases, the standing committees take no action on rules one way or another, but we’ve already seen multiple attempts to block RGGI by the legislature, and it’s hard to imagine either of the current committee chairs, Rep. Darryl Metcalfe and Sen. Gene Yaw, missing an opportunity to stall its implementation. It’s practically certain that the committees will report a concurrent resolution disapproving of the rule. That will create a delay of 30 calendar days or ten legislative days (whichever is longer) while the General Assembly considers the resolution.

Given the composition of the Legislature, it’s very likely that this resolution will pass. But, the Pennsylvania Supreme Court has made it clear that there is no such thing as a “legislative veto” in Pennsylvania—the only way the Legislature can actually block the program is if the Governor agrees to the resolution or the General Assembly has the two-thirds majority needed to override his veto.  

The General Assembly has already attempted to kill the program more than once and, so far, hasn't found the necessary votes. Having failed to obtain a veto-proof majority, and unwilling to accept the Constitutional limits on their power, members of the Senate even took the unprecedented step of threatening to reject all of Governor Wolf’s Publicly Utility Commission nominations unless he agrees to their demands and withdraws the rule. 

While it’s seemingly destined to fail, moving a resolution of disapproval will delay implementation at least 30 days. Then, once that resolution is vetoed, the General Assembly will have at least 30 days more to try and override the veto. Ultimately, the anti-RGGI forces are unlikely to prevail and sooner or later, the rule will be sent to the Attorney General for a final review as to legality and form before being published in the Pennsylvania Bulletin and going into effect.

Pennsylvanians want action on climate change and we need a plan to provide a sustainable path forward for the workers and communities impacted by the failures of the fossil fuel industry. For all the rhetoric from the opposition, they have failed to suggest an alternative besides sitting on their hands and doing nothing. 

In fact, doing nothing for as long as possible seems to be the goal. While the opposition has little chance of stopping the program, if they can string enough delaying tactics together it may be possible to push back the start date of the program by a couple of months.  

Delays like this could give polluters more time to dump carbon pollution in our air for free. That is bad for Pennsylvania, but profitable for the polluting industries.  

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