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Climate Change Had Its Day in Court

Back in November 2014, I wrote about how Mass Energy has joined with the Conservation Law Foundation in a lawsuit against the Commonwealth of Massachusetts because the Mass. Department of Environmental Protection had not written regulations required by the Global Warming Solutions Act. The regulations are about ensuring that we meet the law’s requirement to reduce greenhouse gas emissions 25% by 2020, an important milestone on the way to the ultimate requirement of 80% by 2050. On Friday, January 8, oral arguments in the case were presented to the Supreme Judicial Court. I’m happy to report that the attorney on our side, Jenny Rushlow of the Conservation Law Foundation, did an outstanding job of presenting our argument and answering good questions from the justices.

I’m not an attorney capable of reading how the justices will rule on this and it would not be wise for me to speculate. However, I can offer these observations:

  • Jenny Rushlow made very strong points about the fact that that Section 3D of the GWSA requires the Mass. DEP to write regulations that would, “establish a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gases.”
  • The defendant’s (Commonwealth’s) attorney, Joann Shotwell Kaplan, asserted that three policies or regulations that have been adopted in recent years satisfy the law’s requirements. The justices asked the defendant’s attorney to send in a letter explaining the extent to which they would help the Commonwealth achieve the GWSA’s requirement of reducing greenhouse gas emissions 25% by 2020. Our view is that a factual answer from the Commonwealth will reveal that their cited regulations are grossly insufficient to meet the requirements.
  • The Commonwealth’s attorney also said a couple of times that “limits” (referenced above) are not “caps”. She made them sound more like aspirations or guidelines. Hmm. If you check the dictionary for the definition of limits, you might get a different impression. Again, I’m not a lawyer but limits and caps are synonymous to me.
  • Kaplan also asserted that Massachusetts will meet the 25% reduction by 2020, referencing policies like the procurement of hydropower from Canada. She had to address the fact that Energy and Environmental Affairs Secretary Matthew Beaton told state lawmakers in November that there is “not a chance” the goals will be attained in the timeline provided under the law, absent additional legislative action from lawmakers. But the emission reduction benefits of Canadian hydro would be overwhelmed if new gas pipelines are constructed and Governor Baker’s administration seems to be leaning heavily in favor of the pipelines, even to the extent of having electricity ratepayers foot the bill for financing the pipelines (a policy that is unprecedented in the energy world).
  • To be clear, new natural gas pipelines cannot be reconciled with requirements of the Global Warming Solutions Act. If that was not obvious, it was well documented in a report commissioned by Attorney General Maura Healey.

Aside from the oral arguments, the complaint submitted by CLF was supported by very persuasive amici briefs from several environmental stalwarts including – Alternatives for Community and the Environment, Clean Water Action, Environmental League of Mass., Mass. Sierra Club., Mothers Out Front, and many more. Speaking of Mothers Out Front, they were once again out in force providing moral support to our Attorney Rushlow.


Now that the oral arguments are done, it’s up to justices to come out with a ruling. This may take a few months. While we wait, I can rest assured that the lawsuit was the right thing to do. We know the GWSA is a good law worth enforcing and the regulations we want are about ensuring success in meeting the 25% GHG reduction. If our policymakers are going to avoid responsibility to meet that relatively easy obligation, then how in the hell are we going to reach 80% reductions by 2050?

And finally, perhaps this has nothing to do with the issue at hand, but when I got home after the oral arguments, I was happy to tell my two daughters that the attorneys on both sides of the argument are women and that four out of seven of the justices are too.


Update added on 1/11/16:

A video of the oral argument is available now here. The whole thing is about 40 minutes. The more we all know about the GWSA and how the Commonwealth intends on implementing it, the better.

There’s also some good coverage of the arguments in the Cape Cod Times.


Jenny Rushlow speaking during the court session on Jan 8th.


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