GOP leaders question legality of RGGI regulation, ask AG to intervene

Much like carbon emissions, the RGGI saga isn’t going away anytime soon.

More than a month after the Independent Regulatory Review Commission voted to approve the state’s entrance into the Regional Greenhouse Gas Initiative (RGGI), a collective of states dedicated to reducing carbon emissions by placing restrictions on the amount of carbon emitted by power plants, GOP leadership is making another attempt to keep the commonwealth out of the cap-and-trade program. 

Republican leaders in both the state House and Senate sent a letter to Attorney General Josh Shapiro Tuesday calling on him to review the statutory authority and constitutionality of the RGGI regulation. The letter argues that RGGI violates the Air Pollution Control Act (APCA) and “imposes an unconstitutional tax on two-thirds of Pennsylvania's electricity generation capacity.”

IRRC’s final approval came after the state Environmental Quality Board approved the regulation earlier this year and various attempts by the Republican-controlled legislature to reject the rulemaking. 

“We are pursuing legislative disapproval of the RGGI regulation because overwhelming, bipartisan majorities in both the Senate of Pennsylvania and Pennsylvania House of Representatives oppose the Department of Environmental Protection (DEP)/EQB's RGGI regulation,” the letter states. 

The letter cites the Commonwealth Attorneys Act as the basis for Shapiro’s involvement. It states that the Office of Attorney General “shall review for form and legality, all proposed rules and regulations of Commonwealth agencies before they are deposited with the Legislative Reference Bureau,” and that “if the Attorney General determines that a rule or regulation is in improper form, not statutorily authorized or unconstitutional, he shall notify in writing within 30 days after submission the agency affected, the Office of General Counsel, and the General Assembly through the offices of the Secretary of the Senate and the Chief Clerk of the House of Representatives of the reasons for the determination."

Since Gov. Tom Wolf made the executive decision to put the commonwealth on track to join RGGI, many Republicans and cap-and-trade critics have expressed concerns with the regulatory process. They argue that Wolf not only lacks the statutory authority to enter the state in the regional program but also that it would do more harm than good. 

Wolf’s administration has countered that the regulation is needed in order to address climate change and reduce the state’s carbon footprint. Administration officials said the executive action he took to enter the initiative is permitted under the APCA.

“Participating in RGGI is one more way for Pennsylvania, which is a major electricity producer, to reduce carbon emissions and achieve our climate goals,” Wolf said in a statement following IRRC’s approval. “In addition to the environmental benefits, participating in this cap-and-trade initiative will allow Pennsylvania to make targeted investments that will support workers and communities affected by energy transition.”

A spokesperson from Shapiro’s office said the attorney general is only permitted to review the form and legality of regulations, similar to reviews of state contracts.

This dispute over the regulation and IRRC’s ruling comes on the heels of a report by PennEnvironment that found millions of Pennsylvanians experienced more than a month’s worth of elevated air pollution levels in 2020. 

Republican leadership, conversely, has outlined Shapiro’s role in regulatory review and said RGGI is in the improper form to be promulgated.

“We believe your office is well-positioned to protect blue-collar jobs and communities from suffering job losses and ensure ratepayers are not subjected to massive electric rate increases,” the GOP letter concludes. “In addition, disapproving this regulation would protect the Commonwealth from almost certain litigation that will be expensive and time-consuming.”