Update: On October 27 the Senate adopted its resolution to disapprove RGGI, SCRRR 1, by a vote of 32 to 18 – two votes short of the 34 that would be needed to override a veto by the Governor. The vote tally is available here.
Two years ago, Governor Tom Wolf issued an Executive Order directing the Pennsylvania Department of Environmental Protection to develop regulatory limits on carbon pollution from power plants. Using its existing authority under the state Air Pollution Control Act, the DEP responded by proposing a CO2 Budget Trading Program that will enable Pennsylvania to participate in the Regional Greenhouse Gas Initiative, or RGGI.
The DEP’s proposed regulation enjoys broad support from Pennsylvanians (during the DEP’s public comment period last winter, supporters outnumbered opponents 7 to 1) and has been approved by both the state Environmental Quality Board and the Independent Regulatory Review Commission. The last hurdle it faces before promulgation is the General Assembly: under the Pennsylvania Regulatory Review Act, if a "resolution of disapproval" on a proposed regulation is passed by 2/3 supermajorities in both houses, following initial passage and a veto by the Governor, the regulation may not be promulgated.
A vote on a resolution of disapproval reported by the Senate Environmental Resources and Energy Committee is expected in the Senate this week. If that happens, the resolution will pass due to the Republican majority’s opposition to climate action. If it passes in the House as well, Governor Wolf will veto it; then the General Assembly may attempt an override. Pennsylvanians should pay close attention. The DEP’s RGGI regulation would be Pennsylvania’s most significant action to cut greenhouse gas pollution since 2008; any legislator who votes to disapprove it will be rejecting any action at all.
Why Pennsylvania Needs the CO2 Budget Trading Program
When the DEP’s CO2 Budget Trading Program takes effect, it will establish a declining carbon pollution “budget” (i.e., number of tons) for Pennsylvania’s power sector. Knitted together, Pennsylvania’s budget and those of the other RGGI states will form a “cap” on the region’s power sector emissions, and polluting power plants in the Commonwealth will be required to buy “allowances,” sold at auctions, for the carbon dioxide they emit. The proceeds Pennsylvania receives from these auctions will then be deposited into the state Clean Air Fund to support investments in projects that help reduce air pollution.
The DEP’s RGGI regulation will benefit Pennsylvania in two main ways. First, by establishing limits on carbon pollution, the Program will ensure that the Commonwealth’s power sector emissions—health-harming “criteria” pollutants, as well as carbon dioxide—continue to decline. Emissions have decreased somewhat over the last decade, and RGGI opponents often argue that that trend will continue in the absence of new policy. But the past reductions have been driven by the replacement of old, coal-fired plants with new gas-fired power plants. (The latter drive significant methane emissions through the extraction and transmission of gas, but emit less carbon dioxide at the stack). At this point there is little coal left to replace. Accordingly, without RGGI, emissions have been projected to increase in the coming years.
Second, Clean Air Fund investments can accelerate Pennsylvania’s transition to a cleaner, healthier, and more equitable economy. In recent decades, the Keystone Research Center’s annual State of Working Pennsylvania reports have repeatedly shown that the benefits of economic activity in Pennsylvania have not been equitably distributed. And as the Ohio River Valley Institute’s research has illustrated, fracking hasn’t improved matters. The current state of affairs is the result of decades of federal and state policy decisions. RGGI investments alone won’t fix all of these problems, but they can be part of the solution by supporting the kinds of investments we need (in clean energy and the clean energy workforce) and directing those investments to where they’re most needed: environmental justice communities that have been overburdened by pollution and underserved by investment, and communities whose economies have historically depended on fossil fuels.
The House and Senate Resolutions of Disapproval
Under the state Regulatory Review Act, the path for new environmental regulations in Pennsylvania is long. First, the DEP develops a draft regulatory proposal and solicits feedback from internal advisory bodies. Then the DEP requests EQB approval to start a formal rulemaking process. If the request is granted, the DEP solicits public comment, writes responses, and makes revisions. Approval for the revised regulation must then be obtained from both he EQB and the Independent Regulatory Review Commission. Then the General Assembly has an opportunity to block the regulation by passing a concurrent resolution of disapproval, and can override a gubernatorial veto of a resolution with 2/3 supermajorities in both chambers. Absent an override, the Attorney General reviews the regulation to ensure all RRA boxes have been checked; , then finally, it can be promulgated as law.
The House and Senate Environmental Resources and Energy Committees reported resolutions to disapprove the CO2 Budget Trading Program on September 2 and September 14, respectively. Under the RRA, “the Senate and the House of Representatives shall each have 30 calendar days or ten legislative days, whichever is longer, from the date on which the concurrent resolution has been reported, to adopt the concurrent resolution.”
Yesterday, October 25, was the House’s 10th legislative day since September 2—and the House took no action. Tomorrow, October 27, is the Senate’s 10th legislative day since September 14. Based on a plain reading of the statute, the House resolution is now a dead letter, and the last day for both the House and Senate to act on the Senate resolution is tomorrow. The Republican majority in the General Assembly disagrees, however. On October 18, Republican leaders sent a letter to Attorney General Josh Shapiro arguing that the House has 30 calendar days or 10 legislative days to adopt the Senate resolution in addition to the Senate's' days—i.e., that 30 or 10 means 30 or 10 plus 30 or 10.
The purpose of the legislative leaders’ interpretation is clear: it would maximize the General Assembly’s time to disapprove the DEP’s RGGI regulation, thereby delaying its promulgation and, in turn, Pennsylvania’s ability to participate in RGGI’s allowance auctions. The apparent calculation is that the less time between Pennsylvania’s first auction and the 2022 gubernatorial election, the more likely RGGI opponents are to obtain a preliminary injunction in the lawsuits that follow promulgation.
What Comes Next
The Pennsylvania GOP’s opposition to RGGI is not without irony. After all, RGGI is modeled on a successful acid rain control program developed under Republican President George H. W. Bush, was first proposed by Republican Governor George Pataki, and represents one of the most successful and popular bipartisan climate solutions ever implemented.
No one appreciates irony in Harrisburg, though; everyone just counts votes. Right now, few believe that RGGI opponents will have enough votes to override a veto of a resolution of disapproval—and if they don’t, the DEP’s CO2 Budget Trading Program will become law. Then, the game will shift to the courts.
I say “game” because that’s what the wrangling over RGGI sometimes feels like in Pennsylvania. But of course it’s not a game. For Pennsylvanians, the stakes are enormous. Will their legislators represent their interests or the interests of the fossil fuel industries? As the impacts of climate change arrive with increasing severity, does the Commonwealth have the political will to do anything? Will Pennsylvania make good on RGGI’s investment opportunity or waste it?
If you’re interested in how your legislator will vote on the RGGI resolutions of disapproval (and what he or she will say about it), the General Assembly’s floor votes are streamed live, and NRDC alert will its members by Twitter when debate starts.
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