A Commonwealth Court judge temporarily blocked the Pennsylvania Department of Environmental Protection from implementing its rule to curb carbon dioxide pollution from power plants on Friday — one week after the rule took effect and coal and gas plants started tracking their emissions.
The order by Judge Michael Wojcik pauses Gov. Tom Wolf’s keystone effort at combatting climate change until the full court can consider the merits of the case, which it is scheduled to take up this fall.
The delay is a victory for the coal and gas-fired power plants, unions representing their workers and Republican legislators who challenged the rule, arguing that it amounts to an unauthorized tax. The judge wrote that their argument raised “a substantial legal question” and met the burden of proof for an injunction.
A DEP spokesman said the agency is appealing the decision to the state Supreme Court.
The paused rule required fossil fuel power plants to pay for each ton of carbon dioxide they release and set a gradually declining cap on those emissions. It also linked Pennsylvania with 11 other states in the Regional Greenhouse Gas Initiative, or RGGI, which runs a shared market for the emissions allowances that the plants must buy.
The injunction means that the state will likely miss participating in the next regional auction of carbon allowances in September, which DEP estimates would have raised about $200 million for state programs to cut air pollution and promote clean energy.
The Commonwealth Court is scheduled to hear arguments on different aspects of the case in September and November.
Judge Wojcik wrote that even if the rule resulted “in an immediate reduction in CO2 emissions from Pennsylvania’s covered sources, we conclude that implementation and enforcement of an invalid rulemaking would cause greater harm if the rulemaking is determined to violate the Constitution or a statute. A violation of the law cannot benefit the public interest.”
Republican legislators and business groups hailed the ruling as a benefit to the state’s fossil fuel industries and electricity consumers.
The Power PA Jobs Alliance, an advocacy group whose members include several of the coal and gas interests and unions that challenged the rule, said the injunction “paves the way for the courts to reject this unconstitutional and illegal regulatory tax that was targeting both Pennsylvania’s own energy resources and consumers pocketbooks.”
The policy is expected to raise electricity prices, at least in the short term, but how much is a matter of debate. DEP projects it will cause a 2.4% increase in the wholesale power price and a 1.2% increase in the retail electricity rate.
The judge required the power plants and labor unions to file a $100 million bond with the court within 14 days, in order to compensate the commonwealth for any damages it may sustain if the injunction is later found to be improper and dissolved.
Laura Legere: llegere@post-gazette.com.
First Published: July 8, 2022, 9:54 p.m.
