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Kain v. Department of Environmental Protection

Supreme Judicial Court of Massachusetts, Suffolk

May 17, 2016

Isabel Kain & others [1]
v.
Department of Environmental Protection

         Argued January 8, 2016

          Civil action commenced in the Superior Court Department on August 12, 2014.

         The case was heard by Robert B. Gordon, J., on motions for judgment on the pleadings.

         The Supreme Judicial Court granted an application for direct appellate review.

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          Jennifer K. Rushlow ( Susan J. Kraham, of New York, & Veronica S. Eady with her) for Conservation Law Foundation & another.

          Jo Ann Shotwell Kaplan, Assistant Attorney General, for the defendant.

          Phelps Turner & C. Dylan Sanders, for Isabel Kain & others, were present but did not argue.

         The following submitted briefs for amici curiae:

          Stephanie R. Parker for Clean Water Action & others.

          Edward J. DeWitt for Association to Preserve Cape Cod.

          Arthur P. Kreiger & Jessica A. Wall for William R. Moomaw & others.

          Robert J. Muldoon, Jr., & Thomas Paul Gorman for David A. Wirth.

         Present: Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, & Hines, JJ.

          OPINION

         Cordy, J.

          In this case, we are asked to decide whether the Department of Environmental Protection (department) has fulfilled its statutory mandate under G. L. c. 21N, § 3 ( d ) (§ 3 [ d ]), which provides that the department " shall promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions." By the terms of the enabling legislation, the Global Warming Solutions Act, St. 2008, c. 298 (act), these regulations were to be issued by January 1, 2012, to take effect on January 1, 2013, and to expire on December 31, 2020. See St. 2008, c. 298, § 16. The department failed to take action by the statutory deadline, and in November, 2012, a group of residents submitted a rulemaking petition to the department seeking the issuance of regulations pursuant to § 3 ( d ) to limit greenhouse gas emissions[2] in the Commonwealth.

         The department held a public hearing on June 13, 2013, to consider the petition. Shortly thereafter, it issued a written statement addressing the petitioners' concerns and concluding that it had complied with the requirements of the act, including those set forth in § 3 ( d ). The statement also referenced specific regulatory schemes that the department had established to reduce greenhouse gases, 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

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reducing automobile emissions. The department further stated that these initiatives, individually and in combination, fulfilled the mandate of § 3 ( d ). No further action was taken by the department at that time.

         In August, 2014, the plaintiffs filed a complaint in the Superior Court seeking declaratory relief, or in the alternative, a writ of mandamus, on the grounds that the department had failed to fulfil its statutory mandate under § 3 ( d ). The parties agreed that their respective submissions to the court could be treated as cross-motions for judgment on the pleadings under Mass. R. Civ. P. 12 (c), 365 Mass. 754 (1974). The department again took the position that the sulfur hexafluoride, RGGI, and LEV regulations satisfy the mandate of § 3 ( d ). Following a hearing in March, 2015, the judge dismissed the plaintiffs' mandamus claim and entered judgment in the department's favor based on his findings that the three regulatory initiatives cited by the department substantially complied with the requirements of § 3 ( d ). The plaintiffs timely appealed, and we granted direct appellate review to determine whether the department has met its obligations under § 3 ( d ).

         For the reasons discussed herein, we conclude that the unambiguous language of § 3 ( d ) requires the department to promulgate regulations that establish volumetric limits on multiple greenhouse gas emissions sources, expressed in carbon dioxide equivalents, and that such limits must decline on an annual basis. We further conclude that 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 greenhouse gases across the sources or categories of sources regulated under each of the programs, as intended by the Legislature. Accordingly, we reverse the judgment of the Superior Court.[3]

          Discussion.

          This case was decided in the Superior Court on the parties' cross motions for judgment on the pleadings. See Mass. R. Civ. P. 12 (c). For the purposes of this appeal, we assume to be true the allegations in the plaintiffs' complaint and the exhibits attached thereto. See Sliney v. Previte, 473 Mass. 283, 284, 41 N.E.3d 732 (2015).

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          The plaintiffs sought a declaratory judgment, or in the alternative, a writ of mandamus. A party may seek a declaratory judgment " in any case in which an actual controversy has arisen." G. L. c. 231A, § 1. We interpret the " actual controversy" requirement generously. See Gay & Lesbian Advocates & Defenders v. Attorney Gen., 436 Mass. 132, 134, 763 N.E.2d 38 (2002). " [A] dispute over an official interpretation of a statute constitutes a justiciable controversy for purposes of declaratory relief." Santana v. Registrars of Voters of Worcester, 384 Mass. 487, 493, 425 N.E.2d 745 (1981), S. C., 390 Mass. 353, 455 N.E.2d 1200 (1983). Declaratory judgment is appropriate here because the material facts are not disputed, and the plaintiffs challenge only the department's interpretation of G. L. c. 21N, § 3 ( d ).[4] Moreover, we previously have recognized that " declaratory relief may sometimes be necessary to ensure that an agency will fulfil its statutory mandate." Smith v. Commissioner of Transitional Assistance, 431 Mass. 638, 651, 729 N.E.2d 627 (2000).

         1. Statutory framework.

         We begin with an overview of § 6 of the act, which enacted the Climate Protection and Green Economy Act, G. L. c. 21N (statute). The act was developed against the backdrop of an emerging consensus shared by a majority of the scientific community that climate change is attributable to increased emissions, as well as perceptions in the Commonwealth that national and international efforts to reduce those emissions are inadequate. See Executive Office of Energy & Environmental Affairs, Massachusetts Clean Energy and Climate Plan for 2020 at 8 (Dec. 29, 2010); Executive Office of Energy & Environmental Affairs, Determination of Greenhouse Gas Emission Limit for 2020 at 1 (Dec. 28, 2010) (Secretary's Determination). See also Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 505, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) (petition by Massachusetts, with other States, local governments, and private organizations, arguing Environmental Protection Agency abdicated responsibility under Clean Air Act to regulate emissions of four greenhouse gases, including carbon dioxide).[5] The act established a comprehensive frame-

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work to address the effects of climate change in the Commonwealth by reducing emissions to levels that scientific evidence had suggested were needed to avoid the most damaging impacts of climate change. Executive Office of Energy & Environmental Affairs, Commonwealth of Massachusetts Global Warming Solutions Act 5-Year Progress Report at 17 (Dec. 30, 2013) (Progress Report). In accordance with these findings, the statute requires that, by 2050, greenhouse gas emissions be reduced by at least eighty per cent below 1990 levels. G. L. c. 21N, § 3 ( b ).

         The same year that the act became law, the Legislature also enacted companion legislation concerning " Green Communities," St. 2008, c. 169; " Oceans," St. 2008, c. 114; " Clean Energy Biofuels," St. 2008, c. 206; and " Green Jobs," St. 2008, c. 307. " Each act addresses a separate but related piece of the clean energy economy." See Report of the Senate Committee on Global Warming and Climate Change, No Time to Waste, at 10 (Feb. 13, 2015). The act and its companion statutes provide policymakers with a broad array of tools, including " targeted and technology-specific policies[,] ... economy-wide and market-based mechanisms," and renewable energy portfolio standards and energy efficiency improvements, to advance a clean energy economy while reducing emissions and addressing the unique threats that climate change poses to the Commonwealth. See Massachusetts Clean Energy and Climate Plan for 2020, supra, Executive Summary at 7.

         The act is one of the primary mechanisms for achieving reductions in emissions, and is the sole piece of legislation authorizing the establishment of legally binding limits on those emissions in the Commonwealth.[6] Secretary's Determination at 1. The act represents a commitment by the Commonwealth " to the most ambitious greenhouse gas reductions for a single state in the

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entire country." Progress Report at introductory letter from the Secretary. To ensure that the Commonwealth remains on track to meet the reduction limit for 2050, the statute also includes timelines for achieving specified benchmarks in greenhouse gas reductions in 2020, 2030, and 2040. G. L. c. 21N, § 3 ( b ).

         The act designates the Secretary of Energy and Environmental Affairs (secretary) and the department as the entities primarily responsible for implementing the act.[7] See generally G. L. c. 21N. The design of the act is synergistic, imposing numerous directives and timelines on the secretary and the department to perform certain duties, subject to deadlines. See St. 2008, c. 298, § § 10-18. These duties are to be performed chronologically, and are largely contingent on one another. First, by January 1, 2009, the department was to establish a greenhouse gas reporting regime and registry, which permits the secretary to measure compliance with greenhouse gas emissions reduction efforts. See G. L. c. 21N, § 2 ( a )-( c ); St. 2008, c. 298, § 10. Second, by July 1, 2009, the department was to determine a baseline emissions level equal to the sum of all emissions from Commonwealth sources for calendar year 1990 and " reasonably project" what the emissions level would be in calendar year 2020 " if no measures are imposed to lower emissions other than those formally adopted and implemented as of January 1, 2009" (known as business as usual level). See G. L. c. 21N, § 3 ( a ); St. 2008, c. 298, § 14. Next, the secretary was required, by January 1, 2011, in consultation with the department and the Department of Energy Resources, to a adopt Statewide emission limit for 2020 using the " business as usual" baseline.[8] See G. L. c. 21N, § 3 ( b ); St. 2008, c. 298, § 15. Additionally, by the same date, the secretary was required to adopt a limit for 2020 that was between ten and twenty-five per cent below the 1990 emissions level, as well as a plan for achieving said reduction. See G. L. c. 21N, § § 3 ( b ) (1), 4 ( a ); St. 2008, c. 298, § 15. Next, by January 1, 2012, the department was to promulgate regulations pursuant to § 3 ( d ) " establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit green-

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house gas emissions." [9] See St. 2008, c. 298, § 16. These regulations were to take effect on January 1, 2013. Id.

         It is undisputed by the parties that the department met each of the statutory deadlines, except for the deadline for promulgating the § 3 ( d ) regulations. The department promulgated initial emission reporting regulations in December, 2008, see 310 Code Mass. Regs. § 7.71 (2013), and amended the reporting requirements of the regulations in June, 2009, to address reporting by sellers of retail electricity. See Progress Report at 18. In July, 2009, the department published a report establishing a 1990 baseline and projection of Statewide greenhouse gas emissions for a likely " business-as-usual" case to 2020. Id. In December, 2010, the secretary set a Statewide limit on greenhouse gas emissions of twenty-five per cent below the 1990 levels by 2020. Id. See Secretary's Determination at 1. At the same time, the secretary released the comprehensive Massachusetts Clean Energy and Climate Plan for 2020, discussed supra, in which he identified major sources of greenhouse gases that should be addressed as part of the plan to reduce emissions. See Progress Report at 18. The secretary's determination of the limit for 2020

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was based on analysis by the staff of the agencies under the secretary's purview pursuant to the requirements of the statute, information and reports gathered from the Climate Protection and Green Economy Advisory Committee (established by the secretary), public hearings, and written public comments. Secretary's Determination at 3-4. His determination also took into account that actions taken under other statutory mandates were expected to produce Statewide greenhouse gas emissions reductions of about eighteen per cent below 1990 levels. Id. See Eastern Research Group Final Report to the Climate Protections & Green Economy Advisory Committee, Initial Estimates of Emissions Reductions from Existing Policies Related to Reducing Greenhouse Gas Emissions, 2, 4, 6 (April 30, 2010) (Final Report), available at http://www.mass.gov/eea/docs/dep/air/climate/ergrptf.pdf [https://perma.cc/8Q47-NGSA]. This eighteen per cent calculation accounted for reductions associated with the LEV program and the RGGI. See Final Report at 2, 4, 6.

         Thus, to reach the twenty-five per cent reduction level by 2020, the Commonwealth would have to implement additional measures to achieve approximately seven per cent in further emissions reductions. The parties agree that these reductions need not be attributable solely to regulations passed pursuant to § 3 ( d ), but rather recognize that a variety of policies and programs, including actions taken under other statutory programs, such as the Green Communities Act, G. L. c. 7, § 9A, may produce measurable reductions. Secretary's Determination at 5.

         2. Statutory language.

         General Laws c. 21N, § 3 ( d ), states that " [t]he department shall promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions." The plaintiffs interpret the provision to require the promulgation of regulations that address multiple sources or categories of sources of emissions, impose a limit on emissions that may be released, limit the aggregate emissions released, set emission limits for each year, and set limits that decline on an annual basis. They also claim that the regulatory initiatives cited by the department fail to comply with the requirements of § 3 ( d ). The department counters that § 3 ( d ) requires it only to establish ...


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