Pennsylvania high court maintains RGGI stay

The Pennsylvania Supreme Court yesterday opted against overruling a lower court's decision to temporarily block the state from participating in the Regional Greenhouse Gas Initiative (RGGI).

The Supreme Court's decision means that a lower court's preliminary injunction, which halted enforcement of a regulation that cleared the state to join RGGI, will remain in place for at least the near future.

The state's efforts to participate in the eastern US power plant cap-and-trade program have been mired in legal challenges for months.

The Commonwealth Court first handed down the injunction in July, finding that Republican lawmakers and a coalition of coal-related groups had raised "substantial" questions about the RGGI rule's legality. Although Pennsylvania regulators' subsequent appeal functioned as an automatic "supersedeas" under state law, temporarily staying that injunction, the Commonwealth Court issued another order to again block the rule's enforcement.

The Department of Environmental Protection (DEP) had asked the Supreme Court to reinstate that stay of the injunction while legal proceedings play out, with the state poised to lose out on hundreds of millions of dollars in potential auction revenues. And in a filing last week, DEP asked the Supreme Court to expedite its review of RGGI-related cases and to promptly schedule an argument session on the injunction's legality.

The court's order yesterday rejects DEP's request to stay the injunction though it does not weigh in definitively on DEP's claims that the injunction was wrongly decided.

Pennsylvania, which will miss next week's auction because of these legal challenges, will also miss the 7 December auction unless the injunction is lifted by 23 October, DEP says.

Unless the Supreme Court gets more involved in the cases, the Commonwealth Court has scheduled its own argument sessions for this autumn. A September session will explore Republicans' claims that the state sought to publish the RGGI rule prematurely, while the more important November session will consider RGGI opponents' broader claims that the rule is unlawful.

The court has also expressed interest in an argument session next February to review claims raised by a group of owners of natural gas-fired power plants in a related case about the RGGI rule's legality.

By Cole Martin