‘McCleary mandate’ for carbon reduction?

‘McCleary mandate’ for carbon reduction?
ESSHB 2311 would revise the state’s 2008 carbon reduction goals, though some critics warn it could trigger a lawsuit similar to the McCleary ruling regarding basic education spending. Photo: freepik.com

A House bill that would revise state greenhouse gas (GHG) emission reduction goals set up in 2008 has cleared the state legislature, though legislators are divided over its intent and purpose. ESSHB 2311, sponsored by Rep. Vandana Slatter (D-48), received a 28-21 vote on March 5 following debate over whether the bill could trigger a lawsuit and ultimately a legal mandate for future carbon reduction policies.

Sen. Doug Ericksen (R-42) told colleagues on the Senate floor that the bill “is really setting up a carbon McCleary scenario in Washington state. What is your goal? Is it global warming and climate change? Or is it simply to put in place a process that might require carbon taxes in Washington state to raise more money?”

The 2012 McCleary ruling by the State Supreme Court found that the legislature was failing to meet its constitutional obligation “to make ample provision for the education of all children residing within its borders.” Since then, the state has invested billions more into basic education paid for in part by a property tax increase.

The legislature in 2008 set up GHG reduction goals as follows:

  • Reduce overall emissions to 1990 levels by 2020;
  • Reduce overall emissions to 25 percent below 1990s levels by 2035; and
  • Reduce overall emissions to 50 percent below 1990s level by 2050.

ESSHB 2311 would revise the goals based on recommendations made in a December report by the state Department of Ecology:

  • Reduce overall emissions to 1990 levels by 2020;
  • Reduce overall emissions to 45 percent below 1990 levels by 2030;
  • Reduce overall emissions to 70 percent below 1990 levels by 2040; and
  • Reduce overall emissions to 95 percent below 1990 levels by 2050 or achieve net zero emissions..

An amendment proposed by Sen. Shelley Short (R-7) but not adopted would have added bill language to ESSHB 2311 preventing a lawsuit against the state if it failed to meet those goals.

“There should be no cause where any entity…can come back on the state of Washington for not meeting those goals,” she said. “They’re not regulation, and they’re certainly not something that the court should find…is a mandatory thing.”

However, Sen. Reuven Carlyle (D-36) argued that the amendment wasn’t necessary because “there is no insinuation or assumption whatsoever in any element of this legislation even implying that this is anything other than statewide goals.”

In a September 2015 letter to Ericksen, State Attorney General Bob Ferguson said the 2008 state goals are not legally enforceable because the statute “does not create an express or implied cause of action for requiring the state to enforce the emission reductions.” While Ericksen argued during the March 5 debate the use of the word “shall” suggests a legal mandate, Ferguson’s 2015 opinion argued that “the statute’s use of the word ‘shall’ suggests that the legislature intended the reductions goals to be taken seriously, (but) it does not assign a duty to achieve those reductions to itself.”

Another aspect of the debate is how to view emission increases. According to Ecology, “Washington’s growing economy drove increases in emissions from aviation, shipping, and home heating,” between 2016-2017. However, GHG reduction in the energy sector “balanced those out.”

Emission increases can also be due to more people. Washington’s population has increased since 2008 from 6.6 million to 7.5 million residents. The Office of Financial Management forecasts the state population will be greater than nine million by 2040. The central Puget Sound Region alone is expected to receive 900,000 more residents.

Another amendment proposed by Short but not adopted would have the state goals take into consideration emissions per capita, which she said is “an important component that I think the underlying bill missed. We have people who are constantly moving into the state of Washington from other states. We need to at least address on a very basic level the per capita emissions.”

ESSHB 2311 will require Governor Jay Inslee’s signature before it becomes law.

LEAVE A REPLY

Please enter your comment!
Please enter your name here