Description: Challenge to Massachusetts regulations establishing emissions limits for electricity generating facilities.
New England Power Generators Association v. Department of Environmental Protection
Filing Date Type File Action Taken Summary 09/09/2018 Opinion Download Opinion issued upholding emissions limits. Massachusetts High Court Upheld State’s Greenhouse Gas Emissions Limits for Power Plants. The Massachusetts Supreme Judicial Court held that the Massachusetts Department of Environmental Protection (MassDEP) had authority under the Global Warming Solutions Act of 2008 (GWSA) to set greenhouse gas emissions limits for the electric sector. In addition, the court rejected the argument of parties challenging the emissions limitations that the limits were arbitrary and capricious and inconsistent with the GWSA because they would actually result in increased emissions. The court also disagreed with the challengers’ reading of a sunset provision for regulations and concluded that the provision of the GWSA authorizing the emissions limits was intended to continue to apply after December 31, 2020 and to require that MassDEP promulgate new regulations to take effect after that date. 04/27/2018 Reply Download Reply brief filed by plaintiff-appellants New England Power Generators Association and GenOn Energy, Inc. Massachusetts High Court to Hear Challenge to Power Sector Greenhouse Gas Emissions Limits. Briefing was completed in the Massachusetts Supreme Judicial Court on April 27, 2018 in the case challenging regulations that set greenhouse gas emissions limits for the electric power sector. A hearing is scheduled for May 8. The case was originally filed in Superior Court but was transferred to the County Court on January 31 and then reserved and reported to the full Supreme Judicial Court on February 9. (A second case challenging the regulations (Calpine Corp. v. Department of Environmental Protection, No. 1784CV02917 (Mass. Super. Ct.) was stayed pending the agencies’ completion of amendments to the regulations.) 04/27/2018 Reply Download Reply brief filed by intervenor-appellant Footprint Power Salem Harbor Development LP. 04/13/2018 Amicus Brief Download Brief submitted by amicus curiae Conservation Law Foundation. Conservation Law Foundation filed an amicus brief in support of the regulations, arguing that the regulations fulfilled the requirements set forth by the Supreme Judicial Court in Kain v. Department of Environmental Protection, which held that the GWSA required Massachusetts to promulgate regulations to ensure enforceable volumetric emissions limits. 04/13/2018 Brief Download Brief submitted by appellees Massachusetts Department of Environmental Protection and Executive Office of Energy and Environmental Affairs. The state agencies contended that the electric sector emissions limits were an “essential backstop that ensures the emissions reduction path driven by other policies necessary to meet the [Global Warming Solutions Act's (GWSA's)] 2020 and 2050 limits” and that, by design, the emissions limits would work with Clean Energy Standard regulations to ensure net reductions in statewide and regional emissions. The agencies also argued that the GWSA’s sunset clause did not bar electric sector regulations that extended beyond the sunset date. 02/27/2018 Brief Download Brief filed by intervenor-appellant Footprint Power Salem Harbor LP. Footprint Power Salem Harbor Development LP, the developer of a planned electric generating facility, intervened as a challenger of the regulations. 02/27/2018 Brief Download Brief filed by appellant-intervenor Massachusetts Municipal Wholesale Electric Company. The Massachusetts Municipal Wholesale Electric Company, which operates fossil fuel-fired generating facilities for sale to its municipal members intervened as a challenger of the regulations. 02/27/2018 Brief Download Brief filed by plaintiff-appellants New England Power Generators Association and GenOn Energy, Inc. The trade association and power plant owner challenging the Massachusetts regulations setting greenhouse gas emissions limits for the electric power sector argued that the annually declining, mass-based emissions limits exceeded the state agencies’ authority under the Global Warming Solutions Act (GWSA), that the regulations were arbitrary and capricious because they will likely increase statewide greenhouse gas emissions, and that the agencies were without authority to set emissions limits past the sunset date of December 31, 2020. 02/09/2018 Order Case reserved and reported from the County Court to the full Supreme Judicial Court. 01/31/2018 Order Case transferred to the County Court.
New England Power Generators Association v. Massachusetts Department of Environmental Protection
Filing Date Type File Action Taken Summary 01/16/2018 Motion Download Motion for judgment on the pleadings filed by plaintiffs. Trade Association and Power Plant Owner Told Massachusetts State Court That Greenhouse Gas Emissions Limitations for Electricity Generators Were Unlawful. On January 16, 2018, New England Power Generators Association (NEPGA) and GenOn Energy, Inc. (GenOn) moved for judgment on the pleadings in their action challenging regulations adopted by the Massachusetts Department of Environmental Protection and the Executive Office of Energy and Environmental Affairs that imposed greenhouse gas emissions reductions requirements on electricity generating facilities and other sources. NEPGA is a trade association representing competitive power generators; GenOn owns power plants in Massachusetts. NEPGA and GenOn argued that the regulations were beyond the agencies’ authority because they were inconsistent with the Global Warming Solutions Act (GWSA), which NEPGA and GenOn said circumscribed the agencies’ authority to regulate electric sector greenhouse gas emissions by requiring that regulations take the regional electricity market into account. NEPGA also contended that the GWSA barred the agencies from imposing emissions limitations that extended beyond the statute’s sunset date in 2020. In addition, NEPGA and GenOn argued that the regulations were arbitrary and capricious because “[t]hey would have the perverse impact of causing an increase in statewide greenhouse gas emissions” due to the importing of electricity from less efficient power plants outside of Massachusetts—the plaintiffs said the only modeling in the record demonstrated that this increase would occur. 09/11/2017 Complaint Download Complaint filed.