State climate bill killed by rushed schedule, SCOTUS ruling, claims of 'executive overreach'

A bill that would have given legal heft to Delaware’s efforts to curb climate change failed to become law in the latest legislative session, stymied by multiple issues.

Legislators and other policy experts say delays by the Carney Administration, claims that the measure would give agencies too much power, and U.S. Supreme Court’s deliberations over whether lawmakers, not executive-branch officials, should have more power to decide major national issues conspired to sink the bill for now.

The Delaware Climate Change Solutions Act (SB 305)would have required the state to reduce carbon emissions by 50 percent from 2005 levels by 2030, and by 90 percent by 2050. It would also have required agencies to monitor progress by updating the state’s Climate Action Plan – published late last year by the Carney Administration – every five years.

The bill’s supporters confidently predicted in early June that it would pass the legislature by the end of the session on June 30. But it ran into strong opposition from the business community which argued that it didn’t have nearly enough time to examine and respond to it, and that it would give power to state agencies that properly belonged to the legislature.

The bill passed the Senate on a 13-6 party line vote on June 9, with State Sen. David Lawson absent and State Sen. Bruce Ennis not voting. It then went to the House amid protests from the business community, which said the measure promoted “executive overreach” at the expense of the legislature.

On June 20, the Administration dropped support for its own bill because of what it called “misunderstandings” during the bill’s passage through the Senate. It said then that it didn’t anticipate being able to resolve stakeholder concerns in the short time left during the legislative session, but expects to continue the discussions in coming months.

At the same time, Carney’s office urged State Rep. Debra Heffernan (D-Brandywine Hundred), chair of the House Natural Resources Committee, to cancel a planned hearing on it.

State of Delaware

Heffernan went ahead with the June 29 hearing anyway, even though it was just one day before the end of the session, because she believed it warranted public discussion even if it wouldn’t immediately become law. With the Administration no longer supporting the bill, officials from the Department of Natural Resources and Environmental Control were conspicuously absent from the hearing, depriving committee members of the information they sought, and ensuring that the bill did not get enough votes to be released from committee, Heffernan said.

She said the Administration had been working on a climate bill since last November when it published its Climate Action Plan, a blueprint for lower carbon emissions that would have been subject to legal limits if the bill had passed.

“I was not happy to hear that they had pulled their support, considering it was their bill, and that the Climate Action Plan had been well received,” Heffernan told Delaware Public Media. “I thought it made sense to have a bill to put that in action.”

She was surprised by the Administration’s failure to publish the bill until the last minute, and said more time would have allowed it to be discussed and perhaps supported by the Energy Stakeholders, an informal group of utility executives, environmentalists and policy experts who advise the Senate’s Environment and Energy Committee.

“I kept thinking they would come out with something, and to not even show us until the end of May when the legislature was on break was pretty surprising,” she said, referring to the Administration.

The bill’s failure was “a huge disappointment because climate change and sea-level rise are extremely important issues for our state,” Heffernan said. “I would have liked to see it go forward but I also understand that doing it at the last minute didn’t give time to build support.”

Advocates expected the measure to become law this year because it was drafted by officials in the Governor’s office and DNREC after incorporating policy goals proposed by environmental and community groups.

“I thought we had the Governor’s office and the administrative agency that is the most out front on the issue on the same page with some greenhouse gas targets … and I thought we were going to be able to get there,” said Sen. Stephanie Hansen (D-Newark/Glasgow/Bear), chief sponsor of the bill, and chair of the Senate’s Environment and Energy Committee.

“As it turned out, the bill wandered a little too far into an area that was unsettled in front of the Supreme Court, and without having the opportunity to discuss those issues at depth with the stakeholders, it just wasn’t in a position where it was going to pass,” she said.

In late March, Hansen submitted a draft bill containing the policy goals of 10 environmental and community groups to DNREC and the Governor’s office. Officials told her they were already working on a bill of their own and would incorporate the external demands in a final draft.

The Administration didn’t send its bill back to Sen. Hansen until May 18, leaving very little legislative time between the formal introduction of the bill on June 2 until the end of session for it to pass both chambers.

At the same time, the Supreme Court was debating whether the U.S. Environmental Protection Agency had overstepped its bounds by seeking to curb carbon emissions in West Virginia.

That debate, which led to a landmark decision on June 30 curbing the EPA’s role in fighting climate change, had clear parallels during Delaware’s deliberations over whether its agencies would have legal authority to implement the carbon cuts if the bill became law.

Hansen said the high court’s ruling hinged on the “Major Questions Doctrine” which holds that Congress does not delegate its authority to settle major issues of economic or social policy even if it has given general rulemaking power to agencies.

The court said the doctrine applies when an agency claims the power to resolve a matter of “great political significance”. And it said an agency must have clear Congressional authorization when it seeks to regulate a “significant portion of the American economy.”

“The ruling really goes to the heart of the issue of 305, that issue being: Is this an example of executive overreach into the legislative area?” Hansen told the Energy Stakeholders group last week. “The case was whether the EPA had overreached its Congressional authority to regulate greenhouse gases. In this case, the Supreme Court felt that it had.”

Some members of the panel argued that the high court’s ruling placed new pressure on state lawmakers to ensure that agencies are given explicit legislative authority to implement laws so that they are not accused of “executive overreach”.

“It hit home to me now just how important state legislation is because the federal government is not going to come to our assistance any time soon,” said Tony DePrima, executive director of Energize Delaware, a nonprofit that advocates for energy efficiency. “We need to write this legislation where the intent is clear, and the proper authorities are given.”

But Dustyn Thompson, advocacy and outreach organizer for the Delaware Sierra Club, argued it wasn’t realistic to expect bills such as SB 305 to contain all the detail that is used by an agency to implement laws.

“We need to balance the need of agencies to take administrative action through the regulatory process with the need to be super-prescriptive. I don’t think it’s realistic to have an all-inclusive list of actions within legislation,” Thompson told Hansen’s group.

State of Delaware

The Sierra Club said in an earlier statement that the bill had been stymied by “misunderstandings” over claims of executive overreach, and it pledged to work for a new bill in the next session.

“Upon seeing just how misconstrued the effort was by these stakeholders, the Governor requested time to help us educate the public and those in the business community on what exactly we are trying to accomplish here and what it will look like in practice,” the club said.

“Yes, the disappointment is real, but our resolve to come back in 2023 and push even harder is just as real,” the statement said.

Concerns about executive overreach had already been expressed by critics of the bill before the Supreme Court ruling, and resulted in an amendment in the Senate committee saying that the bill does not authorize state agencies to promulgate regulations beyond their statutory authority. The point was reinforced by DNREC Secretary Shawn Garvin who told the Senate that the bill did not give his agency any more power than it already had.

But neither the amendment nor Garvin’s statement calmed the concerns of opponents who said the bill allowed DNREC and other agencies too much leeway to interpret the law.

Mike Quaranta, president of the Delaware State Chamber of Commerce, one of the groups that opposed the bill, told Delaware Public Media that the state had not given the business community enough time to consider its effects.

“We were surprised that a report with the depth and substance of something like the Climate Action Plan showed up as a legislative proposal. Due to its late introduction, we were concerned that not all stakeholders had had an opportunity to consider the implications of putting a plan into public law,” he said.

Michael Globetti, a spokesman for DNREC, declined to say whether the agency wants to see a new climate bill in the new session, but pledged that it and other agencies will work to implement the Climate Action Plan.

“All agencies of this administration will remain committed to looking for opportunities to mitigate greenhouse gas emissions while implementing practices to help Delaware, as the lowest lying state in the nation, be more resilient to the impacts we are already seeing,” he said.

Now, the bill’s supporters are mulling what they need to do to calm worries that it would give too much power to agencies like DNREC to implement the legislature’s goals for cutting carbon emissions.

Proponents hope to introduce a new version of the bill, or a series of measures that would replace it, at the start of the new session in January. But they but must first determine whether the existing bill would give agencies the power they need to implement the climate goals, or whether more legislation is needed to fend off accusations of “executive overreach.”
To that end, Hansen is now asking all state agencies whether they need specific legislative authorization to implement the tasks outlined in the bill. If they do need it, she would then ask the stakeholders group to agree on what additional authority is needed for each agency and whether that language would be too big for one bill.

If the agencies say they already have enough authority to meet the bill’s demands, she expects to rewrite section 10006 of the bill to make it clear that the agencies aren’t being given more authority than they already have. “I think that would make the stakeholders feel much more comfortable,” she said.

Section 10006 authorizes all state agencies to incorporate the Climate Action Plan, including projections on sea-level rise, temperature and precipitation into their regulations, a requirement that may have raised concerns that the law would lead agencies to overstep their bounds.

“Is that the piece that needs to come out?” Hansen asked the Energy Stakeholders panel. “If we set the goals and we set the review of actions to get to those goals, and we let the agencies do what they need to do…is that the way to go?”