Heard: May 8, 2018
action commenced in the Superior Court Department on
September 11, 2017.
transfer to the Supreme Judicial Court for the county of
Suffolk, pursuant to G. L. c. 211, § 4A, the case was
reported by Budd, J.
D. Jaffe (Stephen L. Bartlett also present) for the
Schofield, Assistant Attorney General (Turner H. Smith,
Shannon S. Beale, & Joseph F. Dorfler, Assistant
Attorneys General, also present) for the defendants.
A. DeTore, for Footprint Power Salem Harbor Development LP,
was present but did not argue.
Nicholas J. Scobbo, Jr., Ann Ryan Small, & Sherry L.
Vaughn, for Massachusetts Municipal Wholesale Electric
Company, submitted a brief.
K. Ismay, for Conservation Law Foundation, amicus curiae,
submitted a brief.
Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher,
& Kafker, JJ.
name bespeaks its ambitions. The Global Warming Solutions
Act, St. 2008, c. 298 (act), was passed to address the grave
threats that climate change poses to the health, economy, and
natural resources of the Commonwealth. See
Massachusetts v. Environmental
Protection Agency, 549 U.S. 497, 521-522 (2007);
Kain v. Department of Envtl.
Protection, 474 Mass. 278, 281-282 (2016). The act is
designed to make Massachusetts a national, and even
international, leader in the efforts to reduce the greenhouse
gas emissions that cause climate change. Id. at 281.
It thus establishes significant, "ambitious,"
legally binding, short- and long-term restrictions on those
emissions. G. L. c. 21N, §§3, 4. See Executive
Order No. 569 (Sept. 16, 2016).
plaintiffs, New England Power Generators Association, Inc.,
and GenOn Energy, Inc., contend that a key provision, G. L.
c. 21N, § 3 (d) (§ 3 [d]), which directs the
Department of Environmental Protection (department) to
promulgate regulations establishing declining annual
aggregate emission limits for sources that emit greenhouse
gas emissions, does not apply to the electric sector, because
that sector is specifically regulated by a separate
provision, G. L. c. 21N, § 3 (c) (§ 3 [c])
. Consequently, the plaintiffs assert that the department and
the Executive Office of Energy and Environmental Affairs
(executive office) (collectively, agencies) exceeded their
authority in promulgating 310 Code Mass. Regs. § 7.74
(2017) (Cap Regulation),  which imposes declining greenhouse
gas emissions limits on the in-State electric sector through
2050. Furthermore, the plaintiffs allege that the Cap
Regulation will increase, rather than decrease, Statewide
emissions. Lastly, the plaintiffs argue that, even if the Cap
Regulation is valid, the "sunset provision" of the
act prohibits additional § 3 (d) regulations after
December 31, 2020. We conclude that none of these arguments
is meritorious and, accordingly, uphold the Cap
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 [greenhouse
gas] emissions, as well as perceptions in the Commonwealth
that national and international efforts to reduce those
emissions are inadequate." Kain, 474 Mass. at
281."The act established a
comprehensive framework 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."
Id. at 281-282.
act's sequenced and specific design sets out interim
benchmarks to map out the course toward meeting the 2050
Statewide emissions limit goal. First, the act directs the
department to determine the calendar year 1990 Statewide
greenhouse gas emissions level and then to project the
"2020 business as usual" level -- "the
statewide greenhouse gas emissions level . . . if no measures
are imposed to lower emissions." G. L. c. 21N, § 3
(a.) . Second, the act requires that the
Commonwealth reduce its Statewide greenhouse gas emissions by
at least eighty per cent below the 1990 level by
2050. G. L. c. 21N, § 3 (b) . The act
also mandates that interim Statewide emissions limits for
2020, 2030, and 2040 be adopted and accompanied by plans for
implementation. Id. Third, the act requires that the
executive office update its implementation plans and publish
interim progress reports every five years. G. L. c. 21N,
§§ 4 (h), 5. Fourth, the act directs the department
to adopt regulations to require the reporting and
verification of Statewide greenhouse gas emissions and to
triennially publish an inventory estimating the past three
years' Statewide emissions. G. L. c. 21N, § 2 (a.) -
defines "Statewide greenhouse gas emissions" as
"the total annual emissions of greenhouse gases in the
[C]ommonwealth," including "all emissions of
greenhouse gases from the generation of electricity delivered
to and consumed in the [C]ommonwealth," even if that
electricity is produced elsewhere. G. L. c. 21N, § 1.
Massachusetts is served by a regional electric power grid
that includes six States and is interconnected with the
regional grids of New York and two Canadian provinces.
relevant to the instant case, the act also empowers the
department, in consultation with the executive office and the
Department of Energy Resources, to set "[e]missions
levels and limits associated with the electric sector, . . .
based on consumption and purchases of electricity from the
regional electric grid, taking into account the regional
greenhouse gas initiative and the renewable portfolio
standard" and directs the department to
promulgate regulations establishing "declining annual
aggregate emission limits for sources or categories of
sources that emit greenhouse gas emissions." G. L. c.
21N, § 3 (c), (d) .
to our decision in Kain, the department relied
significantly on the Commonwealth's membership and
efforts through the regional greenhouse gas initiative
(RGGI), particularly its "cap and trade program for
electricity-generating facilities," to satisfy the
requirements of § 3 (d) . See Kain, 474 Mass.
at 296-297. As a participant of the RGGI, the Commonwealth
"established the carbon dioxide budget trading program,
which incorporat[ed] the RGGI scheme into its regulations and
contain[ed] a schedule of the Commonwealth's annual
'base budget' ... of carbon dioxide."
Id. at 296.
Kain, 474 Mass. at 280, we concluded that the
department had not fulfilled its statutory mandate under
§ 3 (d). With respect to the electric sector, we
reasoned that "although the RGGI program . . . [was]
very important to the over-all regional scheme," it was
established under a statute entirely separate from the act.
Id. at 296. Furthermore, emission reductions from
the RGGI regulation were already accounted for in the
eighteen per cent reduction in emissions anticipated under
the 2020 "business as usual" level. Id. at
296-297. Additionally, given that in-State power plants could
purchase carbon dioxide allowances from generators in other
RGGI-participating States, there was no way to ensure
mass-based reductions in carbon dioxide emissions.
Id. at 297-298. Accordingly, we ordered the
department to "promulgate ...