Citing the fundamental right Pennsylvanians have to clean air and pure water, the Chesapeake Bay Foundation (CBF) has filed an amicus brief asking the Pennsylvania Supreme Court to reverse a Commonwealth Court decision that led to its voiding the state’s participation in the Regional Greenhouse Gas Initiative (RGGI).
The brief states that “This Court should reverse the Commonwealth Court’s decision finding that the RGGI Regulation is an invalid tax and declaring it void, and should find that it constitutes a fee, consistent with the ERA (Environmental Rights Amendment) and the laws and regulations protecting clean air in the Commonwealth.”
The RGGI is a coordinated effort between several Northeastern states that sets a regional limit on carbon dioxide emissions from power plants. Each power plant must pay for each ton of carbon dioxide (CO2) it emits at quarterly auctions. The emissions cap lowers over time, leading to cleaner air and less pollution to waterways while reducing emissions that contribute to climate change.
The United States Energy Information Administration states that Pennsylvania ranks as the country’s fifth-highest state in generating the most carbon dioxide emissions from fossil-fuel fired electric generating units.
According to CBF’s amicus brief, Pennsylvania courts have long held that the critical distinction between a tax and a fee is whether the charge is intended to be a general revenue-producing measure, or if it is a regulatory measure intended to cover the cost of administering a regulatory scheme authorized under the police power of the government.
“Fees from the RGGI can provide important funding to reduce greenhouse gases and to conserve, improve and maintain Pennsylvania’s air and water quality for generations to come, as required by our state Constitution,” CBF Pennsylvania Staff Attorney Trisha Salvia said.
“Revenue from RGGI also means greater carbon dioxide sequestration, regenerative agriculture that enhances soil health, and riparian and upland tree plantings in rural, suburban, and urban landscapes,” Salvia added.
Pennsylvania became the 12th member of the RGGI in 2022, joining RGGI pursuant to a 2019 executive order and a subsequent rulemaking by the state Department of Environmental Protection (DEP) and Environmental Quality Board (EQB).
Various parties filed a lawsuit in Commonwealth Court alleging that Pennsylvania’s participation in RGGI was unconstitutional, “because it usurps the authority of the General Assembly to levy taxes under the Pennsylvania Constitution and is not otherwise statutorily authorized.”
Last November, the Commonwealth Court declared the RGGI rulemaking void because the auction proceeds that it will generate is a tax in violation of the Pennsylvania Constitution, and that “participation in RGGI may only be achieved through legislation duly enacted by the Pennsylvania General Assembly, and not merely through the Rulemaking promulgated by DEP and EQB.”
The DEP appealed the decision to the state’s Supreme Court in December 2023.
“Pennsylvania is unique to most of the other RGGI states in that it has the Environmental Rights Amendment within its Constitution that provides authority to DEP, its trustee, to protect, conserve and maintain its air and waters from the impacts of fossil fuels to its citizens,” Salvia said.
The Environment Rights Amendment, Article I, Section 27 of the Pennsylvania Constitution reads: “The people have a right to clean air, pure water, and to the preservation of the natural, scenic, historic and esthetic values of the environment. Pennsylvania’s public natural resources are the common property of all the people, including generations yet to come. As trustee of these resources, the Commonwealth shall conserve and maintain them for the benefit of all the people.”
