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

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.