This story originally appeared on StateImpact Pennsylvania.
Pennsylvania took big steps in 2022 to limit greenhouse gas emissions, but the regulations were met with several challenges.
The fight over Governor Tom Wolf’s signature climate program still isn’t settled as he prepares to leave office.
Pennsylvania’s regulation to let the state join the Regional Greenhouse Gas Initiative survived an override attempt by the Republican-controlled legislature this year and was published in the Pennsylvania Bulletin in April–making it official–but has been languishing in court since July.
Under the regulation, power plants have to track and pay for their greenhouse gas emissions. That makes dirtier sources of energy more expensive and less competitive with cleaner sources when selling electricity to the grid.
Lawmakers who support coal, oil, and gas development in the state say that will hurt those industries.
“In my opinion, RGGI is probably the most devastating–has the most devastating impact on Pennsylvania’s economy of any governmental overture in the last 75 years,” said Sen. Gene Yaw (R-Lycoming) during a vote this year.
Yaw, who chairs the Senate Environmental Resources and Energy Committee, and other Republican senators sued to stop the rule going into effect. Industry groups also sued.
In court, opponents argued RGGI is an unconstitutional tax on power plants by the executive branch.
The Department of Environmental Protection says the money plants have to pay for pollution is a fee–not a tax–and that it has authority under the state’s Air Pollution Control Act.
A fee can be levied to cover the cost of administering a program; in this case, the state says, that program would reduce air pollution that contributes to global warming.
Widener University law professor John Dernbach, who filed a brief supporting the state, said the RGGI program essentially charges polluters for using a public natural resource.
“Because what the Commonwealth is doing is saying, ‘Well, look, if you want to use the atmosphere as a way to dispose of your carbon dioxide, you’re going to have to pay for that, instead of being able to do it for free,’” Dernbach said.
It’s likely that, whatever the outcome in Commonwealth Court, the case will be appealed to the Supreme Court.
If it takes effect, the program will be under the direction of the next administration.
Governor-elect Josh Shapiro has said he is concerned RGGI would not provide the right balance of reducing emissions while protecting jobs. He’s promised to bring together people from all sides to form his climate plan.
Pennsylvania also adopted rules limiting emissions from oil and gas sites this year, in a race to meet a federal deadline.
In 2018, Wolf hailed the state as a national leader when his administration created limits on methane emissions at oil and gas sites.
But that rule only applied to future projects.
This year, the Wolf Administration capped a six-year process to create a rule regulating emissions at existing oil and gas sites.
The regulation targets volatile organic compounds, which helps form ozone pollution. Regulators say it will reduce the greenhouse gas methane as a co-benefit.
DEP wrote the rule to cover both shallow conventional wells and deeper fracked wells, but then split the rule in June over concerns of a lawsuit.
Glendon King, a staffer for the Republican chair of the House Environmental Resources and Energy Committee, said the split also created a problem.
“To the extent that the department is considering pulling two separate final regulations out of a single proposed regulation–couldn’t more clearly violate the text and intent of the Regulatory Review Act,” King said.
DEP couldn’t risk the time a lawsuit would take.
If the rules did not take effect by Dec. 16, the federal government could withhold more than $500 million in highway funding.
The state’s environmental oversight board finally had to take an emergency vote to ensure the deadline was met.
Both rules were published in the Dec.10 issue of the Pennsylvania Bulletin, making them official.
An industry group’s court challenge to the conventional rule is pending.