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Commonwealth Court Enters Final Order Barring PA from Participation in RGGI

Remember RGGI? We have blogged repeatedly about the Regional Greenhouse Gas Initiative and the tortured way it wound through the rulemaking process and is *still* winding through the courts.

The latest news: Today the Commonwealth Court of Pennsylvania determined that the proceeds from the auction of emission credits that would take place under the RGGI were an unconstitutional tax and entered an order finally barring Pennsylvania’s participation in the RGGI (participation had been temporarily barred pending the Court’s ruling on the case).

“In a nutshell, the Court found that the proceeds of RGGI’s auction of emission credits would be disproportionate to the cost of administering the RGGI program, and thus that RGGI imposed a tax rather than a license fee as the Pennsylvania Department of Environmental Protection had argued,” GASP senior attorney John Baillie said.

The court further noted that Pennsylvania’s Constitution requires that any tax be enacted by the General Assembly; because RGGI was not enacted by the General Assembly (it would have been imposed in Pennsylvania by administrative rule), it was unconstitutional:

Stated simply, to pass constitutional muster, the Commonwealth’s participation in RGGI may only be achieved through legislation duly enacted by the Pennsylvania General Assembly, and not merely through [a] rulemaking promulgated by DEP and [the Environmental Quality Board].

It is expected that DEP will appeal the Court’s order to the Supreme Court of Pennsylvania. GASP will continue to keep you posted.

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