Nearly 25 years ago, environmental lawyers Robert McKinstry and John Dernbach attended a climate change conference at Penn State University, discussing how state policy could address federal inaction.
“At that point, we had plenty of time,” McKinstry said. However, opportunities to curb greenhouse gases in Pennsylvania have repeatedly been missed, despite advancing climate science and increasing extreme weather events. Recently, joining the Regional Greenhouse Gas Initiative was removed from consideration amid budget negotiations.
On Thursday, the lawyers urged action on a 2018 petition, asserting that Pennsylvania must reduce greenhouse gas pollution under its environmental rights amendment.
“We have lost seven years—time that could have been spent more fully developing a lower-cost and more reliable clean energy economy,” they wrote to Pennsylvania’s Environmental Quality Board, which regulates the Department of Environmental Protection. “This is unacceptable.”
The state’s constitutional amendment affirms the right to clean air and water and designates Pennsylvania as a trustee of these resources.
“The people in charge of Pennsylvania’s government have a responsibility under the environmental rights amendment to address climate change seriously,” Dernbach said.
The petition suggests a cap-and-trade program, termed the SAVER regulation, aiming to cut emissions by 40% by 2030 and reach carbon neutrality by 2052, modeled after California’s program.
Cap-and-trade limits pollution, allowing companies to buy and sell emission allowances, promoting efficiency and reduction. Revenue from this system often funds clean energy, public health, or sustainability initiatives. This approach is used globally, including in Washington state, South Korea, the European Union, and China. The first U.S. national cap-and-trade program was enacted in 1990 to tackle acid rain.
McKinstry and Dernbach believe the regulation could boost Pennsylvania’s clean-energy economy, create jobs, and reduce air pollution while funding public transportation and energy efficiency initiatives. Public transit funding has become controversial in Pennsylvania in recent years.
In California, cap-and-trade has faced criticism for not meeting climate goals, and environmental justice advocates argue it allows pollution near disadvantaged communities. Dernbach stated that cap-and-trade doesn’t inherently cause environmental justice issues, suggesting concerns could be addressed during rulemaking. The petition claims SAVER would improve air quality in disadvantaged communities in Pennsylvania.
After filing the original petition in 2018, the urgency to act on climate change has only increased, with rising temperatures and extreme weather costing the state hundreds of millions of dollars, with future damage costs potentially reaching billions.
Pennsylvania’s greenhouse gas emissions have decreased less than the national average since 2005, and some sectors, like agriculture and power generation, are projected to increase.
If Pennsylvania were a country, it would rank 39th globally for climate pollution, between Spain and Myanmar, according to the Rhodium Group.
“I’ve seen so little progress in my lifetime as an environmental activist,” said Joe Minott, a petition signatory and former Clean Air Council executive director. “It’s really discouraging.”
With federal climate commitments waning, state policy has become critical. “That just increases the imperative for the states to act,” McKinstry said.
“It’s a great petition,” noted Maya van Rossum, Delaware Riverkeeper and founder of a national movement for environmental rights amendments. Her organization plans to support the petition, citing a 2024 ruling in Montana where the state was found to have violated residents’ rights by ignoring climate impacts in fossil fuel permits.
For years, Pennsylvania’s environmental rights amendment was ineffective legally due to a 1976 court decision. Dernbach, emeritus professor at Widener University Commonwealth Law School, influenced a change.
In 1999, he argued for a broader interpretation of the ERA in a law review article. A 2013 Pennsylvania Supreme Court decision broadened ERA’s interpretation.
“I’ve seen law review articles that I’ve written as a young law professor turn into law and, frankly, turn into the foundation for this petition,” Dernbach said.
The petition could test whether the ERA also applies to greenhouse gas emissions, beyond other environmental harms.
“Now Is the Time to Act”
Due to a divided legislature, environmental advocates are exploring other means for state action. The Environmental Quality Board is one potential route.
The board accepted the original petition in 2019, prompting a 60-day deadline for a DEP report. When former Gov. Tom Wolf moved to join the Regional Greenhouse Gas Initiative (RGGI) by executive order in 2019, the petition team delayed follow-up until RGGI membership was resolved.
RGGI met strong resistance from Republican lawmakers and the oil and gas industry, resulting in litigation. Pennsylvania never joined the consortium, which aims to lower power plant emissions across 11 states.
In his budget address, as residents face rising electricity prices, Gov. Josh Shapiro stated it’s “time to act” on energy policy, presenting his Lightning Plan to reform permitting and increase power generation. “If you don’t like it—stop making excuses, put your proposal on the table and let’s get to work,” he said.
In 2023, a working group appointed by Shapiro reviewed RGGI membership and recommended a state “cap and invest” program for utility emissions. The Lightning Plan proposes the Pennsylvania Climate Emissions Reduction Act (PACER), a state-run cap-and-invest initiative for power plants, introduced in 2024. The governor’s office declined to comment.
The House Republican Appropriations Committee labeled PACER as an “economically damaging energy tax.” The gas industry trade group Marcellus Shale Coalition criticized the energy plan, claiming it would shift investment to other states and reduce reliance on natural gas in favor of costlier, uncertain energy sources.
Natural gas accounts for about 60% of Pennsylvania’s electricity, with only 4% from renewable sources. The state’s reliance on natural gas contributes to higher electricity costs.
Dernbach and McKinstry acknowledge the challenges ahead. “It’s going to be frustrating, but doing the right thing often takes a long time,” McKinstry said.
Original Story at insideclimatenews.org