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Massachusetts Department of Environmental Protection Releases Draft Greenhouse Gas Emissions Regulations

In December 2016, the Massachusetts Department of Environmental Protection (DEP) released draft greenhouse gas emissions regulations as a result of two things. In May 2016, the Massachusetts Supreme Court issued a ruling finding that DEP was not in compliance with the state’s statutory requirements for greenhouse gas emissions reductions, and the Court mandated that DEP come into compliance with such requirements. Then, on September 16, 2016, Governor Charles Baker signed Executive Order 569, which directed DEP to promulgate regulations that satisfy statutory greenhouse gas emissions reductions requirements by August 11, 2017.

In May 17, 2016, the Massachusetts Supreme Court held that DEP’s greenhouse gas emission reductions programs were not meeting the statutory requirement for emission reductions. Isabel Kain et al. v. DEP, SJC-11961 (May 17, 2016). Specifically, the Court held that the sulfur hexafluoride, Regional Greenhouse Gas Initiative (RGGI), and LEV regulations:

“…fall short of complying with the requirements of § 3 (d) [of the Massachusetts Global Warming Solutions Act], because they fail to ensure the type of mass-based reductions in greenhouse gases across the sources or categories of sources regulated under each of the programs, as intended by the Legislature.”

The Court directed DEP to promulgate new regulations that meet the statutory greenhouse gas emission requirements. The Massachusetts Global Warming Solutions Act (the Act) requires a reduction of greenhouse gas emissions in the Massachusetts greenhouse gas inventory to “a 2050 statewide emissions limit that is at least 80 per cent below the 1990 level.”

DEP’s issuance of draft regulations is not surprising as this action was mandated by the Court and the Governor. However, the regulations are significant because they propose more stringent greenhouse gas emissions reductions than the current standards in Massachusetts. The importance of this action is highlighted by the commencement of a new federal administration, headed by President Trump, in which states will likely lead the charge in climate change regulation, as opposed to federal policy.

(Shannon Morrissey)