SEATTLE (AP) — The Washington Supreme Court on Thursday reinstated a severely limited version of Gov. Jay Inslee’s plan to cap carbon pollution in the state.
In a 5-4 decision, the court said the Clean Air Rule cannot apply to companies that sell or distribute petroleum or natural gas because they don’t make their own emissions. The Department of Ecology only has the authority to regulate “actual emitters,” the court said.
The rule had been struck down by a Thurston County Superior Court judge after it was challenged by business groups. The four justices in the minority would have reinstated it entirety.
While environmental groups said it is a good step to require refineries, smelters and other big polluters to cut their emissions, about three-quarters of the emissions that would have been covered by the rule came from petroleum and natural gas importers and sellers. That means the court’s ruling left the state with a much-diminished rule.
“The issue is not whether man-made climate change is real — it is,” Justice Debra Stephens wrote for the majority. “Nor is the issue whether dramatic steps are needed to curb the worst effects of climate change — they are. Instead, this case asks whether the Washington Clean Air Act grants Ecology the broad authority to establish and enforce greenhouse gas emission standards for businesses and utilities that do not directly emit greenhouse gases, but whose products ultimately do.”
Ecology has no such authority, Stephens wrote.
After the Legislature failed to adopt a cap-and-trade program, Inslee, a Democrat, directed Ecology in 2015 to use authority under the 1967 Clean Air Act to limit carbon emissions from Washington’s largest sources. He called climate change a threat to the state and said the new regulations would help Washington meet its requirements to reduce carbon emissions.
Inslee has long touted environmental issues and made climate change the core issue of his fleeting presidential campaign last year.
The rule requires covered companies to reduce carbon emissions by an average of 1.7% annually and report those emissions every three years. They also could invest in projects that permanently reduce carbon pollution or buy credits from other companies or carbon markets.
In her dissent, Justice Susan Owens wrote that the Clean Air Act did give the Department of Ecology authority to regulate “indirect emitters.”
“At no point do these provisions state that only entities directly emitting air contaminants may be regulated under the Act,” she wrote.
The Association of Washington Business, which led industry and utilities groups in challenging the rule, did not immediately provide a response to the ruling.
Supporters of the rule said exempting fuel importers, sellers and distributors was disappointing.
“It now puts the responsibility back in the Legislature, where we’ve been driving this conversation forward,” said Nick Abraham, spokesman for the Washington Environmental Council, which intervened in the case.
