Petition argues Pa. has duty to enact cap and trade

Source: Benjamin Hulac, E&E News reporter • Posted: Friday, November 30, 2018

Pennsylvania is under pressure to establish and manage a cap-and-trade program, an effort that, if enacted, would limit greenhouse gas emissions throughout the state’s economy.

The Clean Air Council, a Philadelphia-based environmental group, filed a formal petition urging state agencies to draw up such a market, arguing that “excessive” greenhouse gas levels pose an “existential threat” to the state’s climate and natural resources.

Joined by the Environmental Law and Sustainability Center at Widener University Commonwealth Law School and local businesses, the green group argues that the state constitution protects citizens’ rights to environmental protections.

“We all want our children and grandchildren to have a secure and happy life,” Robert McKinstry Jr., a Pennsylvania lawyer and the lead petitioner, said in a statement.

“The disruption of our climate caused by greenhouse gas pollution poses an existential threat to that future,” he said, adding that the program would include emission cuts that the “latest scientific reports conclude are necessary to avoid the very worst effects of climate disruption.”

The Clean Air Council filed its petition to the state Department of Environmental Protection — which would be responsible for issuing permits in this market — and the Environmental Quality Board.

The submission is the latest effort to use state laws and the public trust doctrine, a maxim of environmental law that dates back centuries, to prod state governments to curb heat-trapping carbon emissions.

Since 2011, the legal group Our Children’s Trust has made similar arguments in all 50 states. It is the same group locked in a landmark climate change lawsuit, Juliana v. United States, with the federal government (Climatewire, Nov. 20).

Under the public trust doctrine, governments are responsible for protecting natural resources as vital to the public, and Our Children’s Trust has argued that state agencies that have failed to limit carbon emissions are breaking that obligation to their citizens.

Six youth plaintiffs in Pennsylvania, with help from Our Children’s Trust, sued the state in 2015, arguing that the state constitution binds the government to regulate greenhouse gases.

They filed their lawsuit against six state agencies, including DEP. Although a state court felt they had legal standing to bring the case, that court dismissed the case in 2016. And the Pennsylvania Supreme Court upheld that decision the following year.

Yet also in 2017, the state Supreme Court ruled that the Pennsylvania government and its agencies are bound to protect natural resources in their jurisdiction. The Clean Air Council cites that case, Pennsylvania Environmental Defense Foundation v. Pennsylvania, in support of its petition.

In its submission, the council leans often on public trust protections as justification to address climate change.

“A stable climate, not disrupted by the types of changes caused by human emissions of GHGs in the atmosphere, should be understood as a public natural resource to which the people have a right and which the Commonwealth has a trustee’s duty to conserve and maintain,” the petitioners write. “The climate is not a private resource.”

In a phone interview, Joseph Minott, executive director and chief counsel of the Clean Air Council, said the latest U.N. and U.S. government reports on climate science show how dire the global problem has grown.

In particular, the latest report from the U.N. Intergovernmental Panel on Climate Change shows that humans have about 12 years to address climate change systematically before irreversible damage.

“What is becoming increasingly clear is that we have underestimated how quickly it would affect us,” Minott said of climate change. “We’re running out of time.”

Under the plan, permits would be issued in 2020 at $10, then rise 10 percent annually plus inflation. The market would apply to “anything that has carbon,” Minott said.

The office of Pennsylvania Gov. Tom Wolf (D) and the state DEP received various drafts of the plan from the council, Minott said. “We’ve had a very transparent process,” he said.

If it were to adopt the proposal, Pennsylvania would become the 12th state to use a market-centered approach to reduce carbon emissions, according to the Center for Climate and Energy Solutions.

Neil Shader, a spokesman for DEP, said the agency will review the petition and issue a recommendation to the Environmental Quality Board. That board is responsible for adopting environmental rules for the state.

J.J. Abbott, a Wolf spokesman, did not directly address the petition in an email but said it would be reviewed.

“The governor believes that climate change is real, and that we need to continue to take steps to address this issue, while at the same time preserving and creating good paying jobs in the energy sector and growing our economy,” Abbott said.

Authors of the plan looked to cap-and-trade markets in California, Quebec and Ontario in drafting their proposal.

Asked why the council submitted a cap-and-trade plan, Minott said, “It’s an approach that is well-understood,” including by the industrial firms that would have to purchase permits.

He said with the Trump administration muddling climate science and failing to aggressively take action, the responsibility fell to the states now.

“It’s now all of the above,” he said.

“All of the things that were predicted,” he continued, describing what climate scientists warned of decades ago, “they’re happening harder and faster than were predicted.”