PA Commonwealth Court says RGGI is unconstitutional

November 2 – Pennsylvania Governor Tom Wolf tried to enter the state into the Regional Greenhouse Gas Initiatives (RGGI) in 2019 through an executive order. The move would have cost Pennsylvanians tax dollars and no legislator voted on it. 

RGGI is a north-eastern effort to reduce carbon dioxide emissions from the power grid. It creates a cap on the amount of CO2 emissions a power plant can produce. 

Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New Jersey, New York, Rhode Island, Vermont and Virginia are part of the effort and have signed on to RGGI. 

There has been debate in PA about joining, but then-Governor Wolf made the unilateral decision to do it.

Yesterday, a commonwealth court said, no. That action was unconstitutional.

Pat Ryan of NewsTalk 103.7FM asked, “How much did we spend on this and how long has this one been going on?”

Attorney Clint Barkdoll said, “If you think back when Wolf did this, you remember at the time there was a lot of debate and controversy whether it was legal, that it had to go through the General Assembly. Legal challenges were almost immediately filed. Our participation in it has been put on hold this entire time.”

One question that has come out of the court decision is what will Governor Josh Shapiro do? 

Barkdoll said, “Remember during the governor’s campaign last year, he did not really signal support or opposition to this. He would be asked about it. He was very just kind of gray and then after he took office, he has actually signaled opposition to Pennsylvania being in RGGI. So this is now going to be a test. He does not have to appeal this decision. So if he just sits back and lets it go, there’s the confirmation he never wanted to do it in the first place. On the other hand, if he decides to appeal it to the PA Supreme Court, that’s the indication that he thinks Pennsylvania should be in RGGI. We won’t know for up to 30 days what he decides to do with this, but will this be like another school voucher issue where he just folds? Or is what he said during the campaign true in as much that he never wanted to do this in the first place?”

Michele Jansen of NewsTalk 103.7FM pointed out, “For him to do this a second time, to go back on something he kind of promised on the campaign trail or indicated was wrong, what I’m afraid of is we have a Democratic party that wants that youth vote and the youth have been unfortunately propagandized to so much about climate and I’m not saying climate change is a hoax. Let’s be careful on how we use these terms. But we know there’s an extremist version of what we can do about climate change and the understanding of man made impact on climate change. Even Bill Gates came out and said can we stop it with the crisis, the world’s going to end stuff on climate change because it’s not true. And we need to let innovation and technology catch up. All this so-called carbon capture they’re talking about isn’t going to make a hill of beans dent in what happens to the temperature of the climate when we don’t have control of what happens in the rest of the world. We’re just continuing to destroy the American economy and this false promise that if we do all this stuff in the United States, that’s going to make a huge change on the impact of climate change. No, it will not. It will just destroy one of the economies that is best set to innovate and find real solutions to manmade climate change. I’m just so tired of repeating that, but it has to be repeated.”

If Shapiro appeals, what could the PA Supreme Court do? 

Jansen suggested, “We have a Supreme Court in Pennsylvania that is unbelievably activist. They like to rule by narrative. Unfortunately, we’ve seen it over and over and over again. So is that the danger if we appeal it to the state Supreme Court?”

Barkdoll said, “The odds would probably be better for him in the Supreme Court, that they would uphold Governor Wolf’s action. Now remember, the Supreme Court does not have to hear an appeal though either. So just because he follows the appeal, it’s at the discretion of the Supreme Court whether they would hear it. I would imagine that’s some of the discussion going on internally, within the governor’s General Counsel’s Office, that their odds will be better at the Supreme Court than they were at the Commonwealth Court. But if he holds true to what he said on the campaign trail and what he has signaled earlier this year, he just won’t appeal it at all. In which case, this issue will just die. Theoretically, the General Assembly could take it up. The votes aren’t going to be in the General Assembly to reenter this program, so I suspect it would just die indefinitely. So we’ll see over the next few weeks what Shapiro does with this.”

PA Representative Rob Kauffman said, “Governor Shapiro tried to thread the needle during the campaign to say that he wasn’t sold on RGGI, just not sure. Maybe, maybe not. But we’ll work on that. The reality is he was waiting for the court to do what he knew the trades and many of his constituents wanted to do and throw out RGGI. I believe there are the trade unions, a lot of the folks who have been in the traditional Democrat constituency. Well, the progressives, he has those as well and that is part of threading that needle and why he didn’t want to be the one throwing it out. He thought the court would do that for him. So then he allows the court to do the dirty work. He doesn’t have green on his hands for the progressives and everybody’s happy.”

Jansen suggested, “Except now the Greeniacs will appeal to him. But the Supreme Court, their judiciary hasn’t shown itself to be objective.”

Ryan asked, “What does your gut say? Does he appeal it or not?” 

Kauffman said, “I don’t think he appeals to it, but he could kind of try to read tea leaves or whisper in their ear, what do you think?” 

Jansen wondered, “Are the federal Democratic strategist going to be on his case and say, hey, this could hurt us with young people and we need the young people’s vote, especially with what’s going on now with Israel and the Palestinian and that unbelievable support for terrorists that’s going on in the country right now by young people who I will say, my opinion, they’ve been brainwashed to always look at Israel as an oppressor and the Palestinians as the oppressed that they have to support no matter what.”

Kauffman said, “He’s been pretty good at threading that needle and he’s still got his eyes set on the national stage. So there is no doubt a lot of political conversations are going on behind the scenes as to the benefits of doing this versus the benefits of doing that and figuring out the politics of it because let’s be real, it’s not really about what’s in the best interest of Pennsylvania. It’s about the political calculation.”

Ryan asked, “How would RGGI have affected mommies and daddies and taxpayers in Pennsylvania?”

Kauffman said, “Dramatic, dramatic increases in energy costs. I mean, people think their energy bills have gone up already. They hadn’t seen anything yet. We were talking about big, big increases essentially mandated by this RGGI tax.”