New England Power Generators Association v. 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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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.

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.

Footprint Power Salem Harbor Development LP, the developer of a planned electric generating facility, intervened as a challenger of the regulations.

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.