Climate Policy in the Bay State

With a nudge from its courts, Massachusetts is pushing back against Trump’s climate agenda.

Even in 2006, it was clear that climate change is a serious threat to Massachusetts. That year, in its path-breaking decision on climate change, the Supreme Court gave Massachusetts standing to challenge the Bush Administration’s refusal to regulate greenhouse gases. The basis for standing was impact of sea level rise on the state. It now seems that the estimates back then may have been too cautious. According to a report by the state five years later:

“Assuming that sea level continues to increase at its current rate, because land in Massachusetts is naturally subsiding, by the end of the century, it is expected to rise by another one foot. . . . By the end of this century, under the IPCC high emissions scenario with ice melt, it has been suggested that sea level rise resulting from all these factors could reach six feet.”

The report added that, “[s]ince a large percentage of the state‘s population, development, and infrastructure is located along the coast, the impact of this change will be significant, putting the Massachusetts economy, health, natural resources, and way of life at risk.” Of course, there will be other impacts, too. Boston’s website warns that “[c]ompared to the period from 1971 to 2000, when an average of 11 days per year were over 90 degrees, there may be as many as 40 days over 90 degrees by 2030 and 90 days by 2070—nearly the entire summer.”

In the aftermath of Trump’s announcement that he intended to withdraw from the Paris Agreement, the State’s Republican governor pushed back: “As the Commonwealth reiterates its commitment to exceed the emission reduction targets of the Paris Climate Agreement, today we join the U.S. Climate Alliance to expand on our efforts while partnering with other states to combat climate change.”

On August 11, the Massachusetts Department of Environmental Protection (MassDEP), issued regulations establishing an allowance trading program for CO2 emissions from electricity. The regulation “sets a sector-wide, annually declining limit on aggregate CO2 emissions from 21 large fossil fuel-fired power plants in Massachusetts, from 8.96 million metric tons of CO2 in 2018 down to 1.8 million metric tons in 2050.” Other new rules “require metropolitan planning organizations and the Massachusetts Department of Transportation (MassDOT) to incorporate greenhouse gas emissions evaluation, tracking and reduction into regional transit plans and mass transit improvement projects.” The Sierra Club rightly says that much more needs to be done regarding transportation and heating emissions. But Massachusetts does seem to be heading in the right direction, even under a GOP governor.

That’s not entirely the doing of the Governor and legislature. In a pathbreaking, May 2016 opinion, the state’s highest court held that the state was failing to meet the emission reduction targets established in a 2008 statute. The court turned up the heat on the state government:

“Although the department’s cited regulatory initiatives are important to the Commonwealth’s overall scheme of reducing greenhouse gas emissions over time, they do not fulfil the specific requirements of § 3 (d). The purpose of G. L. c. 21N is to attain actual, measurable, and permanent emissions reductions in the Commonwealth, and the Legislature included § 3 (d) in the statute to ensure that legally mandated reductions are realized by the 2020 deadline. Accordingly, we vacate the judgment of the Superior Court and remand the matter for entry of a judgment declaring that G. L. c. 21N, § 3 (d), requires the department 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.” The opinion was written by Justice Cordy, who stepped down later that year. A Republican appointee, he was apparently considered one of the court’s more conservative justices.


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About Dan

Dan Farber has written and taught on environmental and constitutional law as well as about contracts, jurisprudence and legislation. Currently at Berkeley Law, he has al…

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