Delaware Attorney Calls DNREC Actions Unconstitutional in H - WBOC-TV 16, Delmarvas News Leader, FOX 21 -

Delaware Attorney Calls DNREC Actions Unconstitutional in Hearing

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Sussex County Courthouse (Source: WBOC) Sussex County Courthouse (Source: WBOC)

GEORGETOWN, Del. - A legal debate continued Tuesday over a set of regulations instituted by the Delaware Department of Natural Resources and Environmental Control, which multiple plaintiffs have called unfair and unconstitutional. 

Rich Abbott, attorney for the plaintiffs, on Tuesday morning made his case to Superior Court Judge Richard Stokes. Abbott said regulations limiting carbon dioxide emissions from power plants created a financial burden on rate-payers in Delaware. 

"Those electric consumers will pay more money because of DNREC's invalid regulations," Abbott said. 

The debate first began in 2005, when Delaware joined eight other states in the Regional Greenhouse Gas Initiative agreement. The other states in this regional group were Connecticut, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island and Vermont. That agreement called for the reduction of CO2 emissions from power plants, by setting a cap of 180 million metric tons for the region. 

In 2012, the group voted to cut that cap in half, reducing it to 90 million metric tons. As a result, Delaware passed the Carbon Dioxide Budget Trading Program in 2013, which was essentially the state's corresponding regulations to the change. Abbott’s clients have argued that this was unconstitutional because the change was made without a vote from the General Assembly. 

"It boils down to separation of powers,” he said. "The General Assembly can do pretty much as it wishes. But the executive branch - DNREC - can only do what the General Assembly allows them to do. And they exceeded their authority in the regulations we're challenging." 

Abbott represents various plaintiffs including David Stevenson from the Caesar Rodney Institute and state Rep. Harold Peterman of Milford. 

Deputy Attorney General Ralph Durstein, who represented DNREC at the hearing, said the action was within the rights of DNREC’s secretary. 

“It was understood,” he said, “that over time the cap could change… The General Assembly delineated the authority to the secretary.” 

Durstein also argued that it was unclear that the costs would be passed along to the consumers.

At Tuesday’s hearing, which lasted close to three hours, Abbott made arguments for two motions. The first would be to put a “stay” or a freeze on the regulations, until a final decision is made. The second called for a “summary judgment,” meaning that a judge would make the decision, and not a jury. Stokes did not immediately make a decision on Tuesday, so he could “reflect” on all the information.

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