Judge rules key parts of state’s Clean Air Rule require legislative approval

Thurston County Judge James Dixon has ruled in favor of a business coalition that challenged the state’s clean air rule in 2016. The Daily News reports,

Gov. Jay Inslee’s bold plan to reduce carbon emissions suffered a setback Friday when a Thurston County judge ruled that his administration lacks the authority to impose a key part of its Clean Air Rule without legislative approval. However, the judge let stand the governor’s effort to regulate pulp mills and power plants like those in Cowlitz County…

Ecology Communications Director Camille St. Onge said in an interview Monday that the agency will decide how to proceed after Dixon issues a written ruling.

The Seattle Times reports on the ruling.

In an oral ruling Friday, Thurston County Superior Court Judge James Dixon sided with employer groups who sued last year, contending the state Department of Ecology lacked authority to impose the Clean Air Rule without legislative approval.

Dixon agreed the state cannot force emission reductions on gasoline and natural-gas distributors and similar businesses that do not burn fuels themselves, according to business and environmental representatives who were on hand for the ruling…

Mary Catherine McAleer, a lobbyist for the Association of Washington Business (AWB), which challenged the state over the rule, said the ruling means the state cannot target a leading cause of emissions — gasoline burned in automobiles.

“For the purposes of carbon reduction, the rule has lost its relevance,” McAleer said, calling the judge’s ruling a “useful clarification” on the limits of state authority. She said it was a shame government and businesses both have spent so much time and money preparing for the rule.

The Department of Ecology implemented the rule in 2016 at the direction of Gov. Jay Inslee. A coalition of employer groups led by the Association of Washington Business filed a lawsuit in September 2016 challenging the department’s authority to implement the rule without approval by the Legislature.

Judge James Dixon sided with the employer group Friday afternoon following oral arguments, ruling that the Department of Ecology does not have authority to regulate suppliers of natural gas and petroleum products because they are not an emitting party. The Department of Ecology’s authority is limited to those that directly introduce contaminates into the air, not those that sell the products, Dixon said.

AWB president Kris Johnson said in a statement,

“We are pleased with the judge’s decision. AWB and its members remain committed to reducing greenhouse gas emissions. Washington is a low-carbon leader in the nation and world, and our state’s employers will continue to reduce carbon emissions through innovation and private investment.”

In our report on the 2016 action by the department, we wrote,

In issuing the regulation, the Department of Ecology highlighted the unprecedented nature of its action:

.. Ecology today adopted a first-of-its-kind clean air rule that caps and reduces carbon pollution. 

“Today marks a watershed moment in our country’s history,” said Ecology Director Maia Bellon. “We are taking leadership under our clean air act, adopting a strong and practical plan to reduce greenhouse gases, and doing our fair share to tackle climate change.” 

 Sometimes there’s a reason that regulatory actions are unprecedented: They’re administrative overreach. Our 2017 foundation report update points out, this is not new for Washington.

Over the decades, Washington has added new regulatory systems intended to protect the natural and built environment. That said, the Pacific Research Institute ranks Washington No. 42 in regulatory burden on a scale that has No. 1 as least burdensome. This is reflective of regulatory regimes that often do not fit well together, multiple layers of regulation, and requirements that contradict one another in intent and practice.

 Legislative approval of far-reaching regulatory rules makes sense, as does the judge’s ruling.