Pa.’s carbon fee for power plants is ready to be enacted, but legislative agency says it can’t yet

Final approval may be delayed until early January due to a technical dispute between Gov. Tom Wolf’s administration and the legislative agency that circulates new laws and regulations

By: - December 6, 2021 7:16 am

Keystone Generating Station, a coal-fired power plant in Armstrong County, about 50 miles northeast of Pittsburgh. (Capital-Star photo)

(*This story was updated at 9:55 a.m. on Monday 12/6/2021 to clarify the time period for legislative review)

A statewide program to limit carbon emissions from Pennsylvania power plant operators is set to become law — but slower than environmental advocates would like.

The state’s entry into the multi-state compact known as the Regional Greenhouse Gas Initiative, or RGGI, calls for 58 fossil fuel- burning plants to buy at auction a credit for each ton of carbon they release into the atmosphere. The average price of a credit at the most recent auction was $13 per-ton of carbon.

The policy received a final stamp of approval from Attorney General Josh Shapiro’s office this week, the last step before it would typically be published and enacted.

However, this final step may be delayed until, at latest, early January 2022 due to a technical dispute between Gov. Tom Wolf’s administration and the legislative agency that circulates new laws and regulations, an important,  albeit bureaucratic, step.

Pa. set to enter northeastern initiative limiting carbon from power plants

In a letter sent to the Department of Environmental Protection Nov. 30, the Legislative Reference Bureau — which publishes the new rules in the Pennsylvania Bulletin  — said it would not publicize RGGI, pending an ongoing push by the Republican-controlled General Assembly to block it.

State law allows the Legislature to block proposed regulations by passing a resolution and sending it to the governor’s desk. 

The bureau claims that the state House’s review period for RGGI is still ongoing, and will be open until the 10th session day since Oct. 27, when the state Senate passed the disapproval resolution to the lower chamber.

As of Friday, at least six House session days have passed since Oct. 27. The chamber has three days of session scheduled for the week of Dec. 13, and three more days starting Jan. 10.

“We will hold the rule-making for publication in the Pennsylvania Bulletin until the House review period expires,” the bureau’s letter said.

House Republican spokesperson Jason Gottesman said he anticipated a vote on the resolution the week of Dec. 13. But the delay has infuriated environmental groups, who say the bureau’s interpretation of state regulatory law is wrong.

The initiative’s regulations were approved by a state board on Sept. 1. Pennsylvania regulatory law states that lawmakers have 14 days after approval for a legislative committee to pass a disapproval resolution. 

Then “the Senate and the House of Representatives shall each have 30 calendar days or ten legislative days, whichever is longer” to get the resolution to the governor’s desk.

*Environmental groups say that this law has historically been interpreted as giving both chambers a concurrent amount of time to pass the resolution; not each individual chamber their own period.

“Back from 1982, that’s never been the way it was. This is a totally brand new interpretation that [the Legislature] are making up to delay the process,” Rob Alternburg, an analyst with the advocacy group PennFuture, told the Capital-Star.

He added that RGGI should already be “deemed approved,” because the House didn’t act in time.

The ongoing legislative challenges to the initiative have galvanized Republicans and divided Democrats, since  RGGI is opposed by both business groups and labor unions whose workers either work in, build, or service fossil fuel power plants.

However, it appears on shaky ground, because  Wolf can veto the disapproval resolution. Despite the Democratic defections, legislation opposing it has yet to garner  a veto-proof majority.

Seeking to block a carbon tax, the House fell short of a veto-proof majority. How?

In fact, while Wolf has frequently reached for his veto pen since taking office in 2015, he has never been overridden by the GOP-controlled General Assembly.

Another option is a lawsuit. Both Republican legislative leaders and private power generators have suggested that they could bring legal challenges to the initiative if it’s enacted.

“We know this RGGI rule is going to end up in court one way or another, so I’m sure this regulatory review question will be raised one way or another,” Altenburg told the Capital-Star.

Another point of controversy was Shapiro’s approval of the regulation. State regulatory law requires that the office review proposed regulations twice before they are enacted. 

On final review, “if the Attorney General determines that a rule or regulation is in improper form, not statutorily authorized or unconstitutional,” they shall notify the agency proposing the rule writing within 30 days of their opposition. 

If the agency doesn’t address the changes, the attorney general could then file a legal challenge to the regulation in Commonwealth Court.

However, Shapiro’s  office found this week that the initiative was legal.

“The rule of law is the foundation of all the work of our office,” the attorney general’s office said in a statement. “The scope of our review under the Commonwealth Attorneys Act is limited and we are prevented by law from rejecting a proposed regulation based on policy concerns.”

Gov. candidate Shapiro is skeptical of RGGI. It’s unclear if AG Shapiro will do something about it.

Additionally, the office argued that it could not challenge the department’s ruling that initiative auction revenues were fees, not taxes, under state regulatory law.

Republicans were quick to criticize Shapiro, who expressed some public doubts about the initiative earlier this fall. His potential 2022 opponents portrayed RGGI’s approval as a betrayal of both workers and energy consumers’ pocketbooks.

“By rubber stamping Governor Wolf’s short-sighted, job-killing RGGI regulation, Josh Shapiro has proven that he’s all talk and no action,” GOP gubernatorial candidate Dave White, a Delaware County tradesmen and entrepreneur with close ties to the building trades, said in a statement.

But the building trades weren’t looking for Shapiro to take action as the attorney general, Tom Melcher, business manager of the Pittsburgh Regional Building Trades Council, told the Capital-Star last month.

The group, which represents 33 different western Pennsylvania trade unions, includes some — such as the Boilermakers — who have been among RGGI’s most vocal opponents.  

The council already has endorsed Shapiro’s 2022 gubernatorial run, one of a number of union endorsements he has already picked up. 

That endorsement, Melcher said, was because Shapiro is “for the working man and woman;” he pointed to his recent prevailing wage lawsuit against the state’s biggest contractor as an example.

The endorsement was also not contingent on Shapiro blocking RGGI, whether suing to stop it as attorney general or pulling out of it as governor.

“We’re hoping we can defeat this now, without Shapiro doing anything,” Melcher said.

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Stephen Caruso
Stephen Caruso

Stephen Caruso is a former senior reporter with Pennsylvania Capital-Star. Before working with the Capital-Star he covered Pennsylvania state government for The PLS Reporter.