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Kain v. Department of Environmental Protection

ELR Citation: 46 ELR 20094
Nos. SJC-11961, (Mass., 05/17/2016)

Massachusetts' highest court held that the state Department of Environmental Protection (DEP) failed to issue regulations setting limits on greenhouse gas (GHG) emissions, as required by Massachusetts' Global Warming Solutions Act §3(d). DEP claimed it complied with its statutory mandate by establishing specific regulatory schemes to reduce GHGs, including prescribed limits on sulfur hexafluoride leaks, a regional cap-and-trade market to manage carbon dioxide emissions known as the Regional Greenhouse Gas Initiative (RGGI), and a low emission vehicle (LEV) program aimed at reducing automobile emissions. DEP argued that these initiatives, individually and in combination, fulfilled the mandate of §3(d). But §3(d) unambiguously requires DEP to promulgate regulations that establish volumetric limits on multiple GHG emissions sources, expressed in carbon dioxide equivalents. In addition, the limits must decline on an annual basis. Yet DEP failed to issue such regulations. Moreover, the sulfur hexafluoride, RGGI, and LEV regulations fall short of complying with the requirements of §3(d) because they fail to ensure the type of mass-based reductions in GHGs across the sources or categories of sources regulated under each of the programs, as intended by the state legislature. To comply with its mandate, therefore, DEP must promulgate regulations that address multiple sources or categories of sources of GHG 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.