Pa. appeals court hears oral arguments in fight over RGGI
Robert Routh, public policy and regulatory attorney at the Clean Air Council, and Jessica O’Neill, Senior Attorney for PennFuture, said one of the determining factors in the case could be how the court views the charge for the auctioned carbon allotments — as an ‘unconstitutional tax or permissible fee’
RGGI supporters gather at Love Park in Philadelphia on Wednesday, Nov. 16, 2022 (Photo by Ellie Kerns).
The Commonwealth Court heard oral arguments Wednesday in two “separate but related” cases concerning Pennsylvania’s entrance into the interstate carbon cap-and-trade program known as the Regional Greenhouse Gas Initiative (RGGI).
Petitioners in the cases, which included lawmakers and representatives from energy and labor groups, made their arguments to five of the court’s seven judges, in the hope that the court will find the state’s entrance into RGGI “unconstitutional,” and that the Wolf administration’s Department of Environmental Protection is “unauthorized” to oversee such an effort.
Pennsylvania joined neighboring states New York, New Jersey, Maryland, and Delaware in RGGI, more than three years after the regulatory process first began and after considerable bipartisan pushback from opponents who said Democratic Gov. Tom Wolf’s decision to join the multi-state agreement was an example of executive overreach.
The published regulation was soon met with legal challenges. And in July, the Commonwealth Court issued an order, blocking the state from continuing its efforts to join RGGI until the court ruled on its constitutionality.
Officials at the state Department of Environmental Protection and the Environmental Quality Board appealed the decision to the state Supreme Court, which has yet to issue a ruling.
In a virtual press conference following the hearing on Wednesday, Robert Routh, public policy and regulatory attorney at the Clean Air Council, and Jessica O’Neill, Senior Attorney for PennFuture, said one of the determining factors in the case could be how the court views the charge for the auctioned carbon allotments — as an “unconstitutional tax or permissible fee.”
RGGI’s challengers argued that DEP can impose a fee, but not a tax.
Based on the questions being asked by the sitting judges, O’Neill said it was clear that the bench was “really locked in on the ‘tax vs. fee argument,’” and how the money generated by RGGI would be spent.
“I think it’s hard to read the tea leaves based just on their questions, but I think we certainly saw them grappling with those issues,” O’Neill said. “They’re clearly very engaged and very invested in these issues.”
O’Neill and Routh said they do not have a timeline on when they expect the court to issue a ruling, noting that briefs in a preliminary injunction appeal case are set to go before the state Supreme Court in a matter of weeks.
“So, those are the two things before the courts that we’re waiting on right now,” O’Neill told reporters. “I think it’s not going too far to say that whatever the Commonwealth Court decides — whoever wins in the Commonwealth Court — there will be an appeal from them to the Pennsylvania Supreme Court also. So, we have quite a number of steps ahead of us still in the litigation.”
Our stories may be republished online or in print under Creative Commons license CC BY-NC-ND 4.0. We ask that you edit only for style or to shorten, provide proper attribution and link to our web site. Please see our republishing guidelines for use of photos and graphics.