January 8, 2016
action commenced in the Superior Court Department on August
case was heard by Robert B. Gordon, J., on motions
for judgment on the pleadings.
Supreme Judicial Court granted an application for direct
Jennifer K. Rushlow ( Susan J. Kraham, of New York, &
Veronica S. Eady with her) for Conservation Law Foundation
Shotwell Kaplan, Assistant Attorney General, for the
Turner & C. Dylan Sanders, for Isabel Kain & others,
were present but did not argue.
following submitted briefs for amici curiae:
Stephanie R. Parker for Clean Water Action & others.
J. DeWitt for Association to Preserve Cape Cod.
P. Kreiger & Jessica A. Wall for William R. Moomaw &
J. Muldoon, Jr., & Thomas Paul Gorman for David A. Wirth.
Gants, C.J., Spina, Cordy, Botsford, Duffly, Lenk, &
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 in the Commonwealth.
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
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.
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 ).
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
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).
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 ). 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
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). The act established a
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 ).
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.
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. 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
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 ).
designates the Secretary of Energy and Environmental Affairs
(secretary) and the department as the entities primarily
responsible for implementing the act. 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. 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-
house gas emissions."  See St. 2008, c. 298,
§ 16. These regulations were to take effect on January
1, 2013. Id.
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
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
[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.
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.
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 ...