On November 28, the Clean Air Council, Robert B. McKinstry, Jr., the Widener University Commonwealth Law School Environmental Law and Sustainability Center, Professor John C. Dernbach, C. Baird Brown, and over fifty other businesses, organizations and individuals submitted a petition for rulemaking to the Environmental Quality Board (EQB) to adopt a proposed regulation establishing an economy-wide auction-cap-and-trade program for Pennsylvania. The EQB is the rulemaking authority for the Department of Environmental Proteciton. The proposed program represents a market-based approach to controlling greenhouse gas emissions and use of fossil fuel by providing economic incentives to do so. Because Pennsylvania’s greenhouse gas emissions are globally significant, the proposed regulation represents a landmark step in mitigating climate disruption.
The petition is based in significant part on a landmark June 2017 decision by the Pennsylvania Supreme Court that made clear that all branches and levels of government in Pennsylvania are constitutionally bound to act as trustees over the Commonwealth’s public natural resources, preserving and protecting them for generations yet to come. Article I, Section 27 of the Pennsylvania Constitution guarantees the fundamental right to clean air, declares that the state’s natural resources are the common property of all people, and imposes a duty on the Commonwealth to act as a trustee. This requires the Commonwealth to reduce greenhouse gas emissions, which pose a threat to human health and the environment, to the point where they no longer cause harm.
Article I, Section 27 requires Pennsylvania to take action and, given the sobering findings in the Fourth U.S. National Climate Assessment (released November 23), there is no time to waste. Auction cap-and-trade programs have been implemented successfully in other jurisdictions. Given the considerable authority and flexibility under the state’s Air Pollution Control Act (APCA), Pennsylvania has broad legal authority to enact the proposed regulation under existing law. The EQB petition process offers a clear path forward for such a regulation to be reviewed and adopted.
In 2014, Pennsylvania’s total emissions exceeded all but 21 countries of the world. The proposed regulation would establish a Pennsylvania program in which emissions from covered sources of greenhouse gas emissions would be capped. The cap declines each year by an amount equal to three percent of 2016 emissions, starting in 2018. This would put Pennsylvania on track to achieve carbon neutrality by 2052, consistent with the goal established by the United Nations Framework Convention on Climate Change, as further defined in the Paris Agreement.