A Pennsylvania state court ruled Wednesday that former Gov. Tom Wolf (D) illegally participated in the Interstate Carbon Emissions Payments Program without approval from the Legislature.
As an opinion Written by Judge Michael Wojcik, a five-judge panel of the Commonwealth Court of Pennsylvania ruled that membership in the Regional Greenhouse Gas Initiative (RGGI) constitutes an illegal tax. Plaintiffs in the case also included energy companies and a coalition of labor unions representing fossil fuel workers.
Countries participating in the RGGI set regional caps on carbon pollution from fossil fuel power plants, and power plants buy allowances for each tonne of carbon dioxide they emit above their emission limits. Although attorneys representing the Pennsylvania Department of Environmental Protection (DEP) argued that the cost of the allowance was a fee, the court ruled that it was a tax and therefore required legislative approval.
“Simply put, to pass a constitutional convention, federal participation in the RGGI can only be accomplished through legislation duly enacted by the Pennsylvania General Assembly,” Wojcik wrote.
In her dissenting opinion, Justice Ellen Keisler said it was unclear whether RGGI membership constituted a tax or a fee.
“Based on the record before us, it does not appear that the allowance auction process imposes what would be considered a fee in the traditional sense, but it is equally likely that the revenue collected by it would not be subject to legal fees. It is also not entirely clear whether it will be based on “taxes,” she wrote.
Wolf, who resigned in January, joined RGGI by executive order in 2019 and vetoed a 2020 bill that would have required Congressional approval to join. Ongoing lawsuits, including one that was decided Wednesday, have prevented the state from formally participating until now.
Gov. Josh Shapiro’s (D) administration has 30 days to appeal the ruling to the state Supreme Court.
“The Shapiro administration is carefully considering the federal court’s decision as it considers next steps,” Manuel Bonder, a spokesperson for Shapiro’s office, told The Hill in a statement. “This decision focuses solely on the narrow question of whether this policy, introduced by the previous administration, constitutes a tax or a fee. Governor Shapiro believes that while creating jobs and protecting consumers, We remain focused on tackling climate change, reducing emissions and protecting public health.”
“This is not the final word on Pennsylvania’s participation in RGGI or the tremendous benefits it will bring to our state’s residents. For nearly 20 years, Governor Shapiro has been an advocate for clean air, climate action, and a prosperous Pennsylvania. ,” Manish Bapna, president and CEO of the Natural Resources Defense Council, said in a statement. “He should immediately appeal this erroneous decision and take the program, which has already been proven throughout the Northeast and Mid-Atlantic, to the state Supreme Court.”
Hill contacted the Pennsylvania DEP.
Eleven other states are participating in RGGI: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Pennsylvania, Vermont, and Virginia. . North Carolina is currently considering joining. Virginia Governor Glenn Youngkin (R) has repeatedly called for a withdrawal from RGGI through both legislation and the State Air Quality Control Commission. The state legislature voted to join the RGGI under then-Gov. 2021 Ralph Northam (Democrat).
Virginia’s Democratic-controlled Senate has repeatedly rejected Youngkin’s RGGI withdrawal bill, but the board, which has a majority of Youngkin-appointed members, voted 4-3 to leave in June.
— Updated at 4:57 p.m.
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