A bill sponsored by Republican legislators in Maine seeks to close what its proponents say is a “back door” to adoption of a tax on transportation emissions in the state.

The bill (LD 1498) would ensure that the legislature has the last say in whether the state establishes a tax on vehicle emissions or joins a multistate carbon-reduction program like the Transportation Climate Initiative Program (TCI-P).

Legal analyses show that the Maine Department of Environmental Protection can, under its current authority, adopt a transportation emissions permit auction and fee program like TCI-P without legislative approval, according to testimony by Julie Dumont Rabinowitz, executive director of Maine People Before Politics, to the Joint Committee on Environment and Natural Resources.

DEP’s authority comes from Maine’s 2019 act creating the state Climate Council and directing the agency to adopt measures to reduce emissions in line with the council’s recommendations, Rabinowitz said during a hearing Monday.

The bill would alter DEP’s authority to adopt measures to limit GHG emissions via technical rulemakings so that it can only adopt those measures via substantive rulemakings, which require legislative approval.

Massachusetts, Connecticut, Rhode Island and the District of Columbia have agreed to launch TCI-P, which aims to cut transportation emissions by 26% from 2022 to 2032 through a cap-and-invest system.  (See TCI-P Continues to Advance in Conn. General Assembly.) While Maine has been monitoring the program’s progress, it has not agreed to join it.

The Nature Conservancy is concerned that altering DEP’s authority at this point would undo the progress made under Maine’s climate law.

“The legislature tasked the DEP with rulemaking [authority] to update its tracking and reporting of greenhouse gas emissions and to begin working toward compliance with the emissions levels established by the legislature, in a manner consistent with the Climate Action Plan,” Rob Wood, director of government relations and climate policy at The Nature Conservancy, said in his testimony.

The bill would delay that rulemaking process, which is underway, by a year, he said, adding that the Board of Environmental Protection already is charged with approving newly proposed rules.

“Any new rules will go through a public hearing process — a hearing has already been scheduled for the greenhouse gas tracking and reporting rules — and ultimately to the Board for consideration and a final decision,” he said.

As written, however, the bill establishes a wide prohibition, saying that DEP, the Board and Department of Transportation cannot, without legislative approval, adopt a rule limiting sales of heating fuel, natural gas, gas, or diesel fuel; adopt a tax or permitting fee for carbon emissions; or join any multistate carbon reduction agreement.

Signing on to TCI-P through a technical rulemaking, Rabinowitz said, removes the legislature’s ability to allocate funds raised through a permit auction.

“Maine People Before Politics does not believe the legislature intended to delegate its constitutional authority and responsibilities to tax and appropriate funds when it passed a bill to create the Maine Climate Council,” she said. “Passing … LD 1498 would clarify that the legislature did not do so.”

The bill’s intent, according to DEP, “fails to recognize the very nature of [multistate consortiums].”

“Not only are these [consortiums] voluntary agreements, in which participants retain all their rights and sovereignty and are free to withdraw at any time, but they are also collaborative efforts that build upon the needs of all participants,” Jeff Crawford, director at DEP’s Bureau of Air Quality, said in his hearing testimony. “The bill unnecessarily complicates the rulemaking process, hinders multistate collaborative efforts, and fails to recognize the legislature’s existing authority.”

Maine participates in the multistate Regional Greenhouse Gas Initiative, which caps power plant emissions and auctions emissions permits.

DEP was not authorized by the legislature until 2007 to begin rulemaking that would allow Maine to participate in RGGI, according to Crawford, but the state started working with other states in 2003 to establish the program framework.

“It was this pre-legislative cooperation that provided the impetus for the legislation, not the other way around,” he said. “The restrictions in this bill would make it difficult, if not impossible, for Maine to become involved in such a group effort in the future.”