Wondering How States Will Respond to West Virginia v. EPA? Massachusetts Provides An Early Answer

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Foley Hoag LLP - Environmental Law

Those wondering what states can do to at least partially ameliorate the impacts of West Virginia v. EPA need look no farther than Massachusetts, which issued its Clean Energy and Climate Plan for 2025 and 2030 the same day that the Supreme Court extended its crusade against the modern world by limiting EPA’s authority to regulate in the absence of a clear delegation by Congress.

First, a caveat.  There is no panacea.  Whatever states do, they can’t do everything, and they certainly cannot fully replace federal regulations.  The fundamental problem of climate change remains economic – we don’t have regulations in place forcing those whose products emit GHG to internalize the costs imposed by those emissions.  Until we do, everything else is just a patchwork.

That being said, states such Massachusetts can do a lot, and the CECP for 2025 and 2030 gives some sense of the ambition.  First, the goals.  Massachusetts will – it says here – reduce GHG emissions by 33% from 1990 levels by 2025, and will reduce them 50% by 2030.  Here are three important parts of the plan, addressing electrification, buildings, and transportation:

  • Continued rapid buildout of offshore wind. Massachusetts will continue to enter into PPAs with wind project developers.  It will also take a number of steps to build the broader offshore wind marketplace through a range of downstream efforts, including workforce development.
  • “Rapid, cost-effective deployment of heat pumps by 2030.”
  • Buildout of EV charging infrastructure.

All of this is great, and I’m confident that the steps Massachusetts takes will help incentivize innovations that will drive these technologies down the cost curve.  What’s important to note here, though, is that all of these developments rely on a combination of economic incentives and good old-fashioned, government regulation.

  • Offshore wind incentives are paired with regional and state limits on GHG emissions.
  • The deployment of heat pumps will be encouraged, not just by economic incentives, but also by regulations, effective as early 2024, that will impose limits on GHG emissions from buildings.
  • The massive shift to electric vehicles will be encouraged through government programs to facilitate EV charging infrastructure – and by regulations that will prohibit sales of non-electric vehicles after 2035.

States can do a lot.  And Massachusetts is doing a lot and will continue to do so.  And the Massachusetts economy will benefit.  But if our eyes are on the prize of driving net emissions down to zero economy-wide, the federal government is going to have to have tools to do so – tools that are blessed by the Supreme Court.

DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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