Attorney General admits carbon reduction statute not binding

Jay Inslee – when he tries to justify his extreme “green” agenda that promises to raise costs for working families – often points to a 2008 statute (RCW 70.235.020) which says that Washington State “shall limit” greenhouse gas emissions and reduce them to “1990 levels by 2020 and to half that level by 2050”. As Shift has reported, our state’s budget writers predicted that reaching the carbon-reduction goal—pushed by Inslee—could add an additional $1.47 to the cost of gas, thus raising the cost of everything from the price you pay at the pump to the price of groceries.

Given the heavy costs of achieving a goal passed on a partisan vote in a Democrat-controlled legislature, Republican state Senator Doug Ericksen asked the State Attorney General’s office to review whether or not the statue requires any substantive action from the state. Specially, Ericksen asked the following three questions:

1. Does RCW 70.235.020 require the legislature to create a program that will achieve the greenhouse gas emission reductions listed in RCW 70.235.020(1)(a)(i)-(iii)?
2. Does RCW 70.235.020 create a cause of action to require the state to enforce the greenhouse gas emission reductions listed in RCW 70.235.020(1)(a)(i)-(iii)?
3. Does RCW 70.235.020 create liability for damages for the state if it fails to achieve the greenhouse gas emission reductions listed in RCW 70.235.020(1)(a)(i)-(iii)?

The State Attorney General’s office recently issued the following response (brief version) to the questions:

1. The statute imposes no specific requirement on the legislature to create a program, and, in any event, the legislature generally cannot pass legislation that binds a future legislature.
2. The statute does not create an express or implied cause of action for requiring the state to enforce the emission reductions, and a writ of mandamus would not be available to enforce the emission reductions because those reductions are not a ministerial duty of any specific state official.
3. The statute does not create an express or implied cause of action for damages against the state should the emission reductions in RCW 70.235.020 not be reached. The state is generally not liable for damages for a violation of a statute that articulates a duty to the general public rather than an identifiable group of people.

In other words, according the Attorney General’s analysis, the statute Inslee so often uses to excuse his extreme “green” policies has no teeth. Unfortunately, that reality has not and seemingly will not deter Inslee from pursuing his current course of action in pursuit of his extreme agenda.

In July, Inslee announced his intention to pursue his expensive “green” agenda by bypassing the state Legislature and imposing a new carbon rule via a cap on carbon emissions. Inslee then directed the state Department of Ecology (DOE) to begin developing new carbon reduction regulatory rules that he thinks he can impose on the state using his executive authority.

Inslee rejected Ericksen’s call to suspend Ecology’s work after the AG opinion was handed down. The legal analysis from a fellow Democrat will not, his staff confirmed, change Inslee’s plan to set his cap on carbon.

Ericksen, among other critics, does not believe Inslee has the authority “to pursue those regulations without the Legislature’s approval.” He plans to pursue a legal challenge once Ecology introduces its carbon rule.

Ericksen won’t have to wait long if Inslee has any say in the matter. In a rush to prove that he is the nation’s “greenest” governor, Inslee has expressed his desire to see a draft rule out in January and its adoption by next summer. His aggressive timeline – so that he can have a campaign issue to satisfy his rich environmental next year – is even against the advice of hos own Ecology leaders.