Massachusetts Supreme Court Orders State to Go Much Further in Reducing GHGs

The Columbia Environmental Law Clinic wins a critically important case involving the regulation of greenhouse gas emissions in Massachusetts.

Today, the Massachusetts Supreme Judicial Court released a unanimous decision ordering the state’s Department of Environmental Protection (DEP) to take additional measures to implement the 2008 Global Warming Solutions Act. Specifically, the Court held that DEP must impose volumetric limits on the aggregate greenhouse gas emissions from certain types of sources and that these limits must decline on an annual basis.  The Columbia Environmental Law Clinic was one of the groups representing the plaintiffs in this case.

The case involved a provision of the Global Warming Solutions Act requiring DEP to “promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions.” DEP claimed that it had complied with this provision through several regulatory initiatives, such as the Regional Greenhouse Gas Initiative cap and trade program. The court disagreed, finding that these initiatives did not satisfy the requirements of the Act because they did not entail the imposition of legally binding mass-based emission caps that declined on an annual basis. The court noted that two of the programs involved rate-based emission limitations, which were not sufficient for compliance because they did not ensure actual reductions in aggregate emissions.  Thus, the court held that DEP must promulgate new regulations to implement this provision of the Act.

The plaintiffs had also argued that the requirement to limit “aggregate” emissions from sources or source categories should be interpreted as requiring the establishment of annual statewide emission caps that cover all sources of greenhouse gas emissions. The court disagreed with this argument, holding that the Act only requires DEP to establish limits on aggregate emissions from “multiple” sources, not all sources.

The court concluded by noting that the regulatory programs cited by DEP “are important to the Commonwealth’s overall scheme of reducing greenhouse gas emissions over time” but more must be done to attain “actual, measurable, and permanent emissions reductions” required by the Act. It is now up to DEP to decide how to proceed with implementing its statutory mandates.

The Supreme Judicial Court’s decision in this case, Kain et al. v. Massachusetts Department of Environmental Protection (DEP), is available here.