Court orders Massachusetts to do more to reduce emissions

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A ruling by Massachusetts’ Supreme Judicial Court this month has shown just how effective citizens’ lawsuits can be

On 18 May 2016, a three-judge appellate panel of the Massachusetts Supreme Judicial Court found that the State Department of Environmental Protection had failed to comply with its statutory obligations to reduce greenhouse gas emissions in the state. The case is Kain et al v Massachusetts Department of Environmental Protection and the ruling is available here.

The claim was brought by four youth petitioners, supported by Our Children’s Trust, the Conservation Law Foundation, the Mass Energy Consumers Alliance and the Columbia Environmental Law Clinic.

The youth alleged that the Massachusetts Department of Environmental Protection (DEP) had failed to comply with a provision of the Global Warming Solutions Act 2008 (the Act), enacted by the Massachusetts legislature in response to perceived failures of national and international efforts to reduce emissions.

The Act is one of the most ambitious pieces of emissions reduction legislation in the United States (US), setting an overall state-wide emission reduction target of 80% by 2050 compared to 1990 levels. In order to achieve this goal, it required the DEP to establish an emissions reporting regime and registry, to calculate the 1990 baseline, and then specified timelines for achieving specified benchmarks reduction targets for 2020, 2030 and 2040.

Although the statute left the choice of exactly how to achieve the mandated emissions reductions to the DEP, section 3(d) of the Act required it to make regulations to “establish a desired level of declining annual aggregate emission limits for sources or categories of sources” by 2013. The plaintiffs alleged that the DEP had failed to comply with this requirement.

DEP argued that the language of the statute did not compel it to set binding volumetric emissions caps on sources and that, in any event, it had complied with the statute’s requirement through:

  • promulgating regulations aimed at preventing the leakage of sulphur hexafluoride from electrical power systems;
  • Massachusetts’ continuing membership of the Regional Greenhouse Gas Initiative, which it joined in 2007; and
  • Massachusetts’ adoption of California’s stringent air quality standards under the federal Clean Air Act, in 1990.

The Court rejected the DEP’s interpretation of the statutory language, finding that none of the above actions satisfied the statutory obligation on the DEP to:

“promulgate regulations that address multiple sources or categories of sources of greenhouse gas emissions, impose a limit on emissions that may be released, limit the aggregate emissions released from each group of regulated sources or categories of sources, set emission limits for each year, and set limits that decline on an annual basis.”

This statutory claim demonstrates the importance of citizens’ lawsuits in holding states to account with respect to statutory mandates to reduce emissions.

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