Fiscal Mischief: Pennsylvania's Budget and the Clean Power Plan

On Thursday evening, as some members of Pennsylvania's General Assembly prepared to decamp from Harrisburg and descend on Manhattan for this year's Pennsylvania Society festivities, the state Senate passed a budget bill, House Bill 1327. This prompted an exasperated friend to ask me: "What's up with your state's legislature?"

Exasperation is not the only reasonable response to House Bill 1327, which comes more than five months into the state's budget crisis. Other appropriate reactions include bafflement, indignation, and incredulity. Why? Tucked into House Bill 1327 at the eleventh hour were provisions (possibly unread by many of the 48 out of 50 Senators who voted for the bill) designed to make it harder for the state Department of Environmental Protection (DEP) to develop a state plan for the Clean Power Plan, the first-ever carbon pollution standards for U.S. power plants, and to regulate "conventional" oil and gas drilling. House Bill 1327 would also transfer funds previously earmarked for energy efficiency improvements in buildings and pollution control projects to other uses - including subsidies for natural gas infrastructure.

House Bill 1327 is objectionable on so many levels, it's hard to know where to start. Here, though, are three Clean-Power-Plan-related reasons why the Pennsylvania House of Representatives should vote against the bill - and Governor Tom Wolf should veto it, if it reaches his desk.

1) The legislative review process that House Bill 1327 creates for Pennsylvania's state plan doesn't make sense.

As the agency that administers Pennsylvania's environmental laws, the DEP has the job of writing a state plan to implement the Clean Power Plan and submitting it to the EPA for approval. In 2014, the General Assembly passed (and then-governor Tom Corbett signed into law) the Pennsylvania Greenhouse Gas Regulation Implementation Act, also known as Act 175 of 2014. This ill-conceived and poorly written law -- which we assessed in this post last year -- requires the DEP to submit the state plan to the General Assembly at least 100 days before submitting it to the EPA. House Bill 1327 would enlarge this review period to 180 days, and also inserts ambiguous new language into the existing law (specifically, the phrase "extension deadline"), which in context could be interpreted as referring to any of several different dates.

Because state plans are due to the EPA in September, 2016 - and the DEP has just started to write Pennsylvania's plan, following the end of the 60-day public input process that the DEP conducted this fall - the 180-day review period makes no sense. It would give the legislature more time to review the plan than the DEP would have to write it. This, after fewer than 30 of the state's 250-plus legislators took the opportunity to provide constructive input to the DEP during the recent comment period

And as to the ambiguous "extension deadline" language - well, it's ambiguous, and would create confusion as to just when the legislature has to act on the state plan. It's partly because of such drafting issues that important legislation - including any legislation affecting the Clean Power Plan - should be developed through a transparent, public process, and not through last-minute, dark-of-night budgetary amendments.

2) Pennsylvanians want the DEP to submit a strong and timely state plan to the EPA.

During this fall's public comment period, approximately 2,006 Pennsylvania citizens, power generators, public health organizations, business associations, environmental groups, and others provided comments to the DEP on the state plan. By NRDC's count, 1,920 of those commenters expressed support for the Clean Power Plan; 1,727 said they wanted the state plan to focus on clean energy, not dirty fossil fuels; and 1,429 supported timely submission of a state plan by the DEP. These numbers are not surprising: poll after poll shows that Pennsylvanians support clean energy for its health, climate, and economic benefits and want their legislators to support clean energy, too. The Senate ignored this clear message. What will the House and the Governor do?

3) House Bill 1327 increases the likelihood that Pennsylvania will get an EPA-imposed plan under the Clean Power Plan, rather than a customized state plan designed by and for Pennsylvania.

House Bill 1327's amendments to the Pennsylvania Greenhouse Gas Regulation Implementation Act appear to be designed to make it harder for the DEP both to develop a good state plan and to submit the plan to the DEP on a timely basis. If this is, in fact, what the General Assembly wants - well, it should be careful what it wishes for. If Pennsylvania fails to submit an approvable state plan to the EPA, the EPA will impose a one-size-fits-all federal plan on the state. What this plan would look like is unclear: the EPA is taking public comments on a draft of the federal plan, now. What is clear is that the federal plan would not be a plan of the kind that the DEP has said it wants to write for Pennsylvania - a plan custom-tailored to work for the state's unique and complex power sector, protect its citizens, and to grow its economy. Does the legislature really want a federal plan? The special interests they're pandering to may want to ask themselves the same question.

Again, these are just the reasons related to the Clean Power Plan for voting against House Bill 1327. If I liked far-too-long blogs, I could go on for several more paragraphs about the folly of keeping Pennsylvania's drilling regulations in the 20th century (many of the current regulations date to the 1980s and 90s); the insult-to-injury effect of House Bill 1327's provisions transferring clean energy funds to gas infrastructure, given Pennsylvania's latest failure to enact a severance tax on natural gas extraction; and the highly doubtful constitutionality of amending environmental laws through a spending bill. Enough said. It's time for the Pennsylvania House of Representatives to vote against House Bill 1327, and for Governor Wolf to veto it if they don't.