New England Power Generators Association v. Massachusetts Department of Environmental Protection

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.

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.)

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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.