Washington Supreme Court weighs greenhouse gas rules

OLYMPIA – While everybody in the Temple of Justice courtroom seemed to agree Wednesday that something needs to be done about climate change, attorneys for Washington businesses and some major utilities argued what the state Department of Ecology did wasn’t it.

But state attorneys for the department contended the Clean Air Act allows the Ecology Department to require the utilities, oil refineries and some other companies that provide the fossil fuels used by others to reduce the amount of greenhouse gases put into air.

That’s what the department tried to do in 2016, after the Legislature twice rejected cap-and-trade systems proposed first by then-Gov. Chris Gregoire in 2009 and by Gov. Jay Inslee in 2015. The new rules, which apply first to some of the largest providers of fossil fuels, called for those companies to reduce the total emissions from that fuel or face penalties.

Included in the carbon emissions rules are utilities like Avista and Puget Sound Energy, as well the oil refineries.

A trial court later ruled the requirement was beyond the department’s authority.

One way the companies could meet the mandate, under department rules, was to develop programs anywhere in the state to offset the emissions from the fuels they deliver. It’s not like the cap-and-trade program the Legislature rejected, because Washington wouldn’t be part of a multistate system to purchase pollution credits, Assistant Attorney General Laura Watson said. It also wouldn’t generate revenue for the state the way the cap-and-trade proposals would have.

Jason Morgan, an attorney for the Association of Washington Business and others fighting the regulations, argued that while the Clean Air Act gives the department authority to regulate emissions, those companies don’t actually emit the pollution. That’s done by people who burn gasoline in their cars or natural gas in their furnaces, and that’s where the department would have the authority to impose regulations, he said.

Justice Barbara Madsen seemed skeptical.

“Nothing your clients sell has any value unless it’s emitted, right?” she said. “It’s not like there’s no logical connection.”

“But logic isn’t a legislative grant of authority,” Morgan countered.

The justices also wondered if the Ecology Department has the authority to regulate the companies that provide the fuel rather than the people who use it, where does that authority stop. Could it regulate livestock, which also produce greenhouse gases.

No, Watson said, because the department must be able to quantify what it regulates. There’s no way to quantify livestock emissions with any certainty.

The Supreme Court is likely to rule on the case in the coming months.