Politics & Government

No legal teeth in 2008 state law on gas emissions, analysis says

A 2008 state law seeking big cuts in greenhouse-gas emissions is toothless and does not require the Legislature or other officials to meet its targets, according to a legal analysis by Washington Attorney General Bob Ferguson’s office.

But aides to Democratic Gov. Jay Inslee say that won’t stop him from using his executive authority to set a statewide cap on carbon emissions through the Department of Ecology.

Citing the governor’s authority under the state Clean Air Act — a separate law — the aides rejected calls by state Sen. Doug Ericksen, R-Ferndale, to suspend the Ecology Department’s work.

“This doesn’t change our course at all,” said Chris Davis, an Inslee adviser on climate policy.

Ferguson’s office backed Inslee on that point. Its analysis of the 2008 law “has no impact on the governor’s authority to regulate greenhouse gas emissions,” which derives separately from the state Clean Air Act, said Peter Lavallee, a spokesman for the attorney general’s office.

Ericksen, a leading critic of Inslee’s climate agenda, had requested the attorney general’s opinion on the 2008 law, which says the state “shall limit” greenhouse emissions, to reduce them to 1990 levels by 2020 and to half that level by 2050.

Despite that language, the law creates “no specific requirement” for lawmakers or state officials to actually achieve or enforce the emissions limits, wrote assistant attorney general Christopher Lanese in the informal legal opinion issued this week.

Ericksen said he was glad to see that clarification because he’s been frustrated by Inslee talking as if the limits were binding instead of aspirational.

“It’s one of those goals like ‘end homelessness’ or ‘every child should learn,’” said Ericksen.

Inslee, who has made promotion of clean energy and combating global climate change signature issues since his days in Congress, found his climate agenda largely stymied this year by the Legislature.

His proposal to create a California-like cap-and-trade system to reduce carbon emissions faced staunch Republican opposition and failed to pass even in the Democratic-controlled state House.

That led Inslee to announce in July that his administration intends to sidestep the Legislature and take executive action. He directed the Ecology Department to start a lengthy rule-making process to create enforceable carbon limits.

While the legal analysis released this week won’t halt those plans, Ericksen said he does not believe Inslee has the authority, even under the Clean Air Act, to pursue those regulations without the Legislature’s approval.

Once the Ecology Department proposes its carbon rule, Ericksen said, he’ll pursue another legal challenge.

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