author: Brown, Judge.

text:
    Anthony A. KEITH, Appellant-Defendant, v. STATE of Indiana, Appellee-Plaintiff.
    Court of Appeals Case No. 33A01-1712-CR-2981
    Court of Appeals of Indiana.
    FILED July 24, 2018
    Attorney for Appellant: Cara Schaefer Wieneke, Wieneke Law Office, LLC, Brooklyn, Indiana
    Attorneys for Appellee: Curtis T. Hill, Jr., Attorney General of Indiana, Lee M. Stoy, Jr., Deputy Attorney General, Indianapolis, Indiana
   Brown, Judge.

[1] Anthony A. Keith appeals his conviction for possession of child pornography involving Snapchat images as a level 6 felony. Keith raises one issue which we revise and restate as whether the evidence is sufficient to sustain his conviction. We affirm.

Facts and Procedural History

[2] H.T. was born on May 14, 2001. She and her family camped at Yogi Bear Jellystone Park in Knightstown, Indiana, where her father worked on the equipment, "every weekend when [she] had school, and then ... all summer." Transcript Volume 2 at 50. While camping, H.T. met Keith, who was employed by the campground, and knew him for three to four years before they "bec[a]me friends." Id. H.T. would ride along with him on the campground's "chuck wagon" to assist while Keith worked on equipment or campers that required maintenance. Id.

[3] At some point, Keith asked H.T. for her cellular phone number, and the two exchanged numbers. Keith and H.T. would text each other on a daily basis. They also communicated via Snapchat, which H.T. had requested Keith to join on April 5, 2015.

[4] On October 24, 2015, H.T participated in the campground's haunted trail. At the end of the night, Keith, who was wearing a bear costume, approached H.T. and asked her to help turn off the generators. When the two were alone, he asked H.T. to "play with his [penis]" and if he could fondle her. Transcript Volume 2 at 61. He also took pictures of H.T.'s uncovered vagina with his phone.

[5] On October 25, 2015, Keith and H.T. communicated via text message as follows:

Keith: Good Morning sweetie. Thanks for your help last night
H.T.: Your [sic] welcome
H.T.: Are you still out here at the campground
Keith: Yep. I'll come see you when Teresa leaves
H.T.: Ok tell me when she leaves so I know
* * * * *
H.T.: Are you going to come see me before I leave
H.T.: Will you come see me before I leave please
Keith: I'm heading up now. She is or has just left

State's Exhibit 1 at 3.

[6] At some point, Keith and H.T. again exchanged text messages as follows:

Keith: I'm trying
Keith: Try snapchatting me
H.T.: Ok
H.T.: What do you want me to snapchat you
Keith: I don't care, I don't even have you as a friend
Keith: I ain't seeing or receiving anything WTF
H.T.: What is your username
Keith: Oh wait. Did you just send "who is this"
H.T.: Yes
Keith: D--- it. Is there another app that only you and me can chat. I'm afraid Teresa could be monitoring snap chat. My Friends are people I don't even know.
H.T.: Not that I know of,[ ]but you can unfriend the people you you don't want on there.

Id. at 6.

[7] On November 4, 2015, Keith and H.T. shared the following exchange by text message:

H.T.: What's up
Keith: Jake[ ]
H.T.: Yes
H.T.: Yes I want Jake
Keith: Really
H.T.: Yeah really
Keith: I don't believe ya
H.T.: Why
Keith: You haven't seen him
H.T.: Well I have played with him and I want to see him
Keith: We'll see
H.T.: I want to see him
H.T.: If that's alright Keith: Absolutely

Id. at 7-8.

[8] At some other point, Keith and H.T. again text messaged about "Jake," as follows:

Keith: Hey sweetie
H.T.: What's up
Keith: Jake
H.T.: Yes
H.T.: I want Jake
Keith: You can't handle Jake
H.T.: Yes I can
Keith: Jake will hurt you
H.T.: No he won't
H.T.: I want to see Jake
Keith: What do you call yours?[ ]

Id. at 9.

[9] On December 10, 2015, H.T. sent a message which stated, "... nothing much just sitting in my room playing on my phone what you up to," and Keith responded, "Playing with your what. Oh nevermind. I thought you said something else. I was gonna say. Take a video. Lol." Id. at 10. H.T. then replied, "If I was doing that how was I going to send you the video." Id.

[10] On December 15, 2015, Keith and H.T. communicated via text message as follows:

H.T.: What's up
Keith: I'm s[i]tting here look [sic] at your photo
H.T.: Which one
Keith: Both
H.T.: Do you like them that much

Id. at 11.

[11] On December 28, 2015, Keith sent H.T. a message which stated that he was "[t]rying to get a deleted pix [sic] of Bonnie," H.T. sent Keith a message which stated, "[d]o you need me to send you one," and Keith responded, "I would like that. Is it possible to do a video? I've never done that," and indicated after H.T. messaged affirmatively that he "might try that." Id. at 17.

[12] At some point, Keith sent H.T. a text message which stated, "[f]or some reason the photos you sent last night got on my computer through ICloud.. [.] She questioned the h- - - out of me about who sent them. I told her it was 1 of my buddies and it was a female puller. I have since turned off iCloud on my phone." Id. at 28. After more messaging, he sent H.T. a message which stated, "[k]inda freaked me out. I had to be fast on my feet with an answer that I knew she would accept. You can still send all the photos you want. Nobody will see them now." Id.

[13] On March 10, 2016, the State charged Keith with sexual misconduct with a minor as a level 4 felony, vicarious sexual gratification as a level 5 felony, child solicitation as a level 5 felony, and possession of child pornography, a level 6 felony. On May 12, 2017, the State amended the first two counts to attempted sexual misconduct with a minor as a level 4 felony and sexual misconduct with a minor as a level 5 felony.

[14] At trial, H.T. testified that, at the time she and Keith "were becoming friends ... and texting and Snapchatting each other," Keith knew her age because they "shared the same birthday," meaning the same month and date. Transcript Volume 2 at 54. She testified she did not know his birth year but that she knew he was approximately "[f]orty-six." Id. at 55. She stated that at some point in the relationship, Keith started asking her to send him photographs of herself and that "[h]e wanted pictures of ... my [breasts] and vagina." Id. When asked how he asked for those photographs, she replied that he "would ... ask me, 'Will you send me, like, pictures of your [breasts] and vagina,' " and that he did so in person at the campground. Id. She indicated that she sent him multiple unclothed pictures of her breasts and vagina through Snapchat "more than ten times." Id. at 56.

[15] H.T. testified that, on October 29, 2015, she and Keith discussed "what his Snapchat username [was]," that she knew what his screen name was "[b]ecause he had - it had ... shown up on my thing where I searched it," and that she thought she and Keith were connected on Snapchat. Id. at 91. She also testified that she went to the campground after the November 4, 2015 text messages and accompanied Keith alone to a barn, Keith made advances towards her, he "kept on asking me if I would play with his [penis]," and that he took pictures when she had her pants pulled down of her uncovered vagina. Id. at 71. When asked what she meant by "If [I] was doing that" in her December 10, 2015 message, H.T. stated that she meant playing with herself, or playing with her breasts or vagina. Id. at 96. With respect to Keith's December 15, 2015 message that he was sitting and looking at her photos, H.T. testified that she had sent him photos of her uncovered breasts and vagina. She answered affirmatively when asked if, "when he refers to both, did you send separate photos." Id. at 98.

[16] H.T. was shown the twelfth page of State's Exhibit 1, which was a photograph of an undated text message conversation between herself and Keith, and answered, when asked what the text message conversation referred to, "[l]ike, his wife finding out." Id. at 98. In response to "[d]id he have some reason why he thought his wife found something out," she stated, "[b]ecause I think his phone connected to his laptop." Id.

[17] H.T. was shown the thirteenth page of State's Exhibit 1, which was a photograph of an undated text message conversation between herself and Keith, was asked to read it, and stated:

"I'm sorry, I didn't mean it." "I deleted everything from the - from - I deleted everything from pics to text and rebooted my phone. It'll probably - it probably won't - wouldn't be a bad idea for you to do the same. I didn't realize that when I deleted pics I also had to go into the file of deleted stuff and delete them again." "Okay. Will do." "I love you, but I don't want to get into trouble, and when we will - then we will never be able to see each other again."

Id. at 99. She then testified that she meant "[l]ike, him - like, me sending, like, pictures to him," when she had texted "I'm sorry, I didn't mean that." Id. She answered affirmatively when she was asked, "[s]o you sent some pictures, and - and they possibly got discovered." Id. After the prosecutor stated, "he talks about deleting stuff ... asking you to delete stuff," and asked H.T. if she deleted photographs, and she responded affirmatively. Id. at 100.

[18] H.T. was shown the fourteenth page of State's Exhibit 1, which was a photograph of an undated text message conversation between herself and Keith, was asked to read it, and stated:

"I might be coming to New Castle." "Oh, really? Why?" "Walmart." "Why are you - why here in New Castle?" "Looking for a red sweatshirt." "Okay." "How's Bonnie?" "She is doing good, but she could be better." "Oh, she will. I promise." "Okay. How's Jake?" "Had a great night. Doing good but could do - could be better, also." "He'll get better once camping gets here. I promise."

Id. When asked about what Keith was referring when he inquired, "How's Bonnie," H.T. stated, "[m]y vagina." Id. at 101.

[19] When shown the fifteenth page of State's Exhibit 1, or a photograph of a text message displaying a picture of H.T.'s face and a picture of Keith's face, H.T. indicated that she was in her room when she took her picture. When shown the photographs of the December 28, 2015 text message conversation between herself and Keith, H.T. testified that, when Keith referred to deleted pictures of Bonnie, he was referring to "[t]he pictures that he had deleted off of his phone" and that when he asked in the message if it was possible "to do a video," she believed it meant "one like on Snapchat. Like, a short one." Id. at 103-104. When shown the photographs of the January 5, 2016 text message conversation between herself and Keith, H.T. testified that she was referring to her breasts when she messaged "before long, you will get to see them in person." Id. at 108.

[20] After H.T. was shown photographs of the conversation in which Keith had messaged her that "the photos you sent last night got on my computer" and read the conversation, she testified that she had sent more photos of her breasts and vagina. Id. at 111. She also testified that she continued to send pictures of herself throughout October, November, December, 2015 and January, 2016 because she believed she was in a relationship with Keith, and that she was fourteen at the time. She answered affirmatively when asked if Keith ever sent her photographs of his penis, that she knew it was his "[b]ecause you could see ... his face in the picture," and that he would send the photographs whenever she sent him one. Id. at 56-57. With respect to his photographs, she testified that she received them through Snapchat, she saved the photographs "[a] couple of time[s], but ... deleted them," Keith would say that she needed to delete them before his wife found out, and that he would talk about deleting items "[a]t least once a week, or every time we - he sent a picture." Id. at 57.

[21] On direct examination, the following exchange occurred concerning Snapchat:

[Prosecutor]: Okay. And the messages and the pictures that you send, are those saved anywhere in the app, that you -
[H.T.]: No.
[Prosecutor]: - know of? Is that one of the features of Snapchat?
[H.T.]: Yeah.

Id. at 54. When asked to explain her basic understanding of how Snapchat works, she stated that it was "[l]ike sending pictures of ... what you're around and ... where you're at" and that "they deleted on their own." Transcript Volume 2 at 121, 122. She responded, "ten seconds," when asked if she knew what the normal time limit for a Snapchat is, and answered affirmatively when then questioned, "if you don't save a picture within that ten seconds, it deletes" and "as far as you know there's no way to recover that." Id. at 138-139. She testified that she saved photos "off of Snapchat" which were "saved to [her] hard drive of [her] iPhone," and answered affirmatively when asked if it was possible to save those images onto a wireless device or computer and if she had ever saved images with Keith to her phone. Id. at 129.

[22] On redirect examination, the following exchange occurred between the court, the prosecutor, and Keith's counsel:

[Prosecutor]: When you sent pictures of your breast or vagina to [Keith], did you ever get a notice that he saved the picture?
[Keith's Counsel]: I would object.
* * * * *
[Keith's Counsel]: I think it calls for [ ] hearsay - it's not her statement. I think it calls for a - something that's an out of court statement from the app itself. So I'm going to object.
THE COURT: Out of court statement from?
[Keith's Counsel]: From the - from the Snapchat app itself.
THE COURT: Response, [Prosecutor]?
[Prosecutor]: Your Honor, I think that it's an observation that she can testify that she made that the app gave her a notification that a photo was saved.
[Keith's Counsel]: I'll -
THE COURT: Well, I ... guess it's not being offered that the photo was saved, it's being offered that she received a notification. So I'll deny - overrule your objection. You can answer the question, ma'am.
[H.T.]: Yes.
[Prosecutor]: Yes you got notifications?
[H.T.]: Yes, I did.

Id. at 140. During recross-examination, H.T. testified that, in her experience with Snapchat, the images saved to the phone.

[23] Detective Sergeant Anthony Wayne Darling of the Henry County Sheriff's Department testified that he interviewed Keith on March 14, 2016, that he had very little experience with Snapchat gained through training and in consulting with the Cyber Crimes Unit of the Indiana State Police Lab, and that it was his "understanding that with Snapchat that the way ... a photo is saved is if someone - for instance, whether who receives it would take a screenshot of that." Id. at 185. The court admitted and played for the jury an audio recording of the interview, in which Keith admitted that H.T. had sent him pictures of her breasts and vagina.

[24] At the conclusion of trial, the jury found Keith guilty of sexual misconduct with a minor as a level 5 felony, child solicitation as a level 5 felony, and possession of child pornography, a level 6 felony.

Discussion

[25] The issue is whether the evidence is sufficient to sustain Keith's conviction for possession of child pornography as a level 6 felony. When reviewing claims of insufficiency of the evidence, we do not reweigh the evidence or judge the credibility of witnesses. Jordan v. State , 656 N.E.2d 816, 817 (Ind. 1995), reh'g denied . We look to the evidence and the reasonable inferences therefrom that support the verdict. Id. The conviction will be affirmed if there exists evidence of probative value from which a reasonable jury could find the defendant guilty beyond a reasonable doubt. Id.

[26] At the time of the offense, Ind. Code § 35-42-4-4(c) provided in relevant part that "[a] person who knowingly or intentionally possesses ... a photograph ... that depicts or describes sexual conduct by a child who the person knows is less than eighteen (18) years of age or who appears to be less than eighteen (18) years of age, and that lacks serious literary, artistic, political, or scientific value commits possession of child pornography, a Level 6 felony." For purposes of Indiana criminal law, a party engages in knowing conduct "if, when he engages in the conduct, he is aware of a high probability that he is doing so." Ind. Code § 35-41-2-2(b). A party engages in intentional conduct "if, when he engages in the conduct, it is his conscious objective to do so." Ind. Code § 35-41-2-2(a).

[27] Possession can be either actual or constructive. Eckrich v. State , 73 N.E.3d 744, 746 (Ind. Ct. App. 2017) (citing Sargent v. State , 27 N.E.3d 729, 732-733 (Ind. 2015) ("Although arising in a different context our jurisprudence on the issue of 'possession' is rather straightforward: it can be either actual or constructive.") ), trans. denied . Constructive possession occurs when a "person has (1) the capability to maintain dominion and control over the item; and (2) the intent to maintain dominion and control over it." Id. (quoting Gray v. State , 957 N.E.2d 171, 174 (Ind. 2011) ). The capability requirement is met "when the State shows that the defendant is able to reduce the [contraband] to the defendant's personal possession." Perry v. State , 956 N.E.2d 41, 61 (Ind. Ct. App. 2011) (citing Goliday v. State , 708 N.E.2d 4, 6 (Ind. 1999) ), reh'g denied .

[28] Keith argues that merely receiving an image sent by somebody else that is automatically deleted by the application is not possession under Indiana law and that he did not "intentionally point a web browser to certain websites to view them." Appellant's Brief at 7, 11. He asserts that the "issue of whether receiving child pornography through Snapchat is knowing or intentional 'possession' is an issue of first impression in Indiana" and that the child pornography statute in effect at the time of the offense prohibited only possession, and not viewing, of child pornography. Id. at 9. He also argues that, while he could save pornographic images by taking a screenshot of the Snapchat, police did not find any image on his computer or cellular phone and that the court ruled that H.T.'s testimony, i.e. , she believed Keith had saved the images she sent him based on her receipt of a notice from Snapchat, was not offered as proof that the image was saved.

[29] The State argues that Keith asked H.T. to send him images of her uncovered breasts and vagina through Snapchat, points to H.T.'s receipt of notification from Snapchat, and maintains that, although Snapchat automatically deleted the images, Keith could still control what happened to the images in the brief interim before they were deleted by saving them to his phone and reducing them to his personal possession.

[30] The record reveals that Keith took pictures of H.T.'s uncovered vagina with his phone, that he made numerous references to H.T., a person he knew was under the age of eighteen, and to obtaining photographs of her depicting sexual conduct, including those on December 28, 2015, and that he was trying to obtain a deleted picture of her vagina and was wondering if it was "possible to do a video." State's Exhibit 1 at 17. We note H.T.'s testimony that he started asking her to send him photographs of herself, that "[h]e wanted pictures of ... my [breasts] and vagina," and that, when she had sent pictures of her breasts or vagina to Keith, she received a notification from Snapchat at least once that a photo had been saved. Transcript Volume 2 at 55. We also note Keith's message that "[f]or some reason the photos you sent last night got on my computer through ICloud." State's Exhibit 1 at 28.

[31] We further observe that Keith requested via text message that H.T. "try snapchatting [him]" and later reassured her that she could "still send all the photos [she] want[ed]" and "[n]obody will see them now," statements which ultimately resulted in H.T. sending multiple unclothed pictures through Snapchat over multiple occurrences. Id. at 6, 28. The trial testimony regarding Snapchat reveals that images sent through the Snapchat application may be saved onto a wireless device or computer and that there is a time limit of around ten seconds in which to save a picture. Based upon the record, the State presented evidence of probative value from which a reasonable jury could find Keith guilty beyond a reasonable doubt of possession of child pornography as a level 6 felony.

Conclusion

[32] For the foregoing reasons, we affirm Keith's conviction for possession of child pornography as a level 6 felony.

[33] Affirmed.

Bailey, J., and Crone, J., concur.

      Snapchat is a cellular phone application used to "message people ... and send pictures." Transcript Volume 2 at 53.

      At trial, H.T. testified that "Jake" was the name of Keith's penis, that at some point he told her he referred to his penis as Jake, and that, whenever he would text her about Jake, he was texting her about his penis. Transcript Volume 2 at 66-67.

      At trial, H.T. was asked what Keith meant when he asked, "[w]hat do you call yours," she responded she thought he was talking about her vagina, and she testified that she ended up having the name "Bonnie" for her vagina. Transcript Volume 2 at 95-96.

      Subsequently amended by Pub. L. No. 13-2016, § 15 (eff. July 1, 2016).

      To the extent that Keith argues that the statute's 2017 amendment reflects that "prior to July 1, 2017 ... 'possession' did not include merely accessing images with an intent to view them," we affirm on the basis of whether Keith "knowingly or intentionally possess[ed]" the images and not based on the 2017 amendment language.


source: Caselaw Access Project

author: KAFKER, J.

license: Public Domain

text:
    NEW ENGLAND POWER GENERATORS ASSOCIATION, INC., & others v. DEPARTMENT OF ENVIRONMENTAL PROTECTION & another.
    SJC-12477
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued May 8, 2018 Decided September 4, 2018
    Seth D. Jaffe, Boston (Stephen L. Bartlett, Boston, also present) for the plaintiffs.
    Seth Schofield, Assistant Attorney General (Turner H. Smith, Shannon S. Beale, & Joseph F. Dorfler, Assistant Attorneys General, also present) for the defendants.
    John A. DeTore, Boston, for Footprint Power Salem Harbor Development LP, was present but did not argue.
    Nicholas J. Scobbo, Jr., Ann Ryan Small, Boston, & Sherry L. Vaughn, for Massachusetts Municipal Wholesale Electric Company, submitted a brief.
    David K. Ismay, for Conservation Law Foundation, amicus curiae, submitted a brief.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.

      GenOn Energy, Inc.; and Footprint Power Salem Harbor Development LP and Massachusetts Municipal Wholesale Electric Company, interveners.

      Executive Office of Energy and Environmental Affairs.

   KAFKER, J.

Its name bespeaks its ambitions. The Global Warming Solutions Act, St. 2008, c. 298 (act), was passed to address the grave threats that climate change poses to the health, economy, and natural resources of the Commonwealth. See Massachusetts v. Environmental Protection Agency, 549 U.S. 497, 521-522, 127 S.Ct. 1438, 167 L.Ed.2d 248 (2007) ; Kain v. Department of Envtl. Protection, 474 Mass. 278, 281-282, 49 N.E.3d 1124 (2016). The act is designed to make Massachusetts a national, and even international, leader in the efforts to reduce the greenhouse gas emissions that cause climate change. Id. at 281, 49 N.E.3d 1124. It thus establishes significant, "ambitious," legally binding, short- and long-term restrictions on those emissions. G. L. c. 21N, §§ 3, 4. See Executive Order No. 569 (Sept. 16, 2016).

The plaintiffs, New England Power Generators Association, Inc., and GenOn Energy, Inc., contend that a key provision, G. L. c. 21N, § 3 (d ) ( § 3 [d ] ), which directs the Department of Environmental Protection (department) to promulgate regulations establishing declining annual aggregate emission limits for sources that emit greenhouse gas emissions, does not apply to the electric sector, because that sector is specifically regulated by a separate provision, G. L. c. 21N, § 3 (c ) ( § 3 [c ] ). Consequently, the plaintiffs assert that the department and the Executive Office of Energy and Environmental Affairs (executive office) (collectively, agencies) exceeded their authority in promulgating 310 Code Mass. Regs. § 7.74 (2017) (Cap Regulation), which imposes declining greenhouse gas emissions limits on the in-State electric sector through 2050. Furthermore, the plaintiffs allege that the Cap Regulation will increase, rather than decrease, Statewide emissions. Lastly, the plaintiffs argue that, even if the Cap Regulation is valid, the "sunset provision" of the act prohibits additional § 3 (d ) regulations after December 31, 2020. We conclude that none of these arguments is meritorious and, accordingly, uphold the Cap Regulation. 1. Background. "The act was developed against the backdrop of an emerging consensus shared by a majority of the scientific community that climate change is attributable to increased [greenhouse gas] emissions, as well as perceptions in the Commonwealth that national and international efforts to reduce those emissions are inadequate." Kain, 474 Mass. at 281, 49 N.E.3d 1124. "The act established a comprehensive framework to address the effects of climate change in the Commonwealth by reducing emissions to levels that scientific evidence had suggested were needed to avoid the most damaging impacts of climate change." Id. at 281-282, 49 N.E.3d 1124.

The act's sequenced and specific design sets out interim benchmarks to map out the course toward meeting the 2050 Statewide emissions limit goal. First, the act directs the department to determine the calendar year 1990 Statewide greenhouse gas emissions level and then to project the "2020 business as usual" level -- "the statewide greenhouse gas emissions level ... if no measures are imposed to lower emissions." G. L. c. 21N, § 3 (a ). Second, the act requires that the Commonwealth reduce its Statewide greenhouse gas emissions by at least eighty per cent below the 1990 level by 2050. G. L. c. 21N, § 3 (b ). The act also mandates that interim Statewide emissions limits for 2020, 2030, and 2040 be adopted and accompanied by plans for implementation.

Id. Third, the act requires that the executive office update its implementation plans and publish interim progress reports every five years. G. L. c. 21N, §§ 4 (h ), 5. Fourth, the act directs the department to adopt regulations to require the reporting and verification of Statewide greenhouse gas emissions and to triennially publish an inventory estimating the past three years' Statewide emissions. G. L. c. 21N, § 2 (a ) - (c ).

The act defines "Statewide greenhouse gas emissions" as "the total annual emissions of greenhouse gases in the [C]ommonwealth," including "all emissions of greenhouse gases from the generation of electricity delivered to and consumed in the [C]ommonwealth," even if that electricity is produced elsewhere. G. L. c. 21N, § 1. Massachusetts is served by a regional electric power grid that includes six States and is interconnected with the regional grids of New York and two Canadian provinces.

Most relevant to the instant case, the act also empowers the department, in consultation with the executive office and the Department of Energy Resources, to set "[e]missions levels and limits associated with the electric sector, ... based on consumption and purchases of electricity from the regional electric grid, taking into account the regional greenhouse gas initiative and the renewable portfolio standard" and directs the department to promulgate regulations establishing "declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions." G. L. c. 21N, § 3 (c ), (d ).

Prior to our decision in Kain, the department relied significantly on the Commonwealth's membership and efforts through the regional greenhouse gas initiative (RGGI), particularly its "cap and trade program for electricity-generating facilities," to satisfy the requirements of § 3 (d ). See Kain, 474 Mass. at 296-297, 49 N.E.3d 1124. As a participant of the RGGI, the Commonwealth "established the carbon dioxide budget trading program, which incorporat[ed] the RGGI scheme into its regulations and contain[ed] a schedule of the Commonwealth's annual 'base budget' ... of carbon dioxide." Id. at 296, 49 N.E.3d 1124.

In Kain, 474 Mass. at 280, 49 N.E.3d 1124, we concluded that the department had not fulfilled its statutory mandate under § 3 (d ). With respect to the electric sector, we reasoned that "although the RGGI program ... [was] very important to the over-all regional scheme," it was established under a statute entirely separate from the act. Id. at 296, 49 N.E.3d 1124. Furthermore, emission reductions from the RGGI regulation were already accounted for in the eighteen per cent reduction in emissions anticipated under the 2020 "business as usual" level. Id. at 296-297, 49 N.E.3d 1124. Additionally, given that in-State power plants could purchase carbon dioxide allowances from generators in other RGGI-participating States, there was no way to ensure mass-based reductions in carbon dioxide emissions. Id. at 297-298, 49 N.E.3d 1124. Accordingly, we ordered the department to "promulgate regulations that establish volumetric limits on multiple greenhouse gas emissions sources, expressed in carbon dioxide equivalents, and ... such limits must decline on an annual basis." Id. at 280, 49 N.E.3d 1124.

On September 16, 2016, approximately four months after Kain was decided, the Governor issued Executive Order No. 569, titled "Establishing an Integrated Climate Change Strategy for the Commonwealth." The order, in part, directed the department to promulgate final regulations by August 11, 2017, that satisfy § 3 (d ) and that ensure that the Commonwealth meets the 2020 Statewide emissions limit mandated by the act. Twelve days later, on September 28, 2016, the department began seeking input on proposed regulations of emission sources from stakeholders, including scheduling technical meetings for electricity sector stakeholders. During these meetings, the department considered establishing a declining greenhouse gas emissions cap for Massachusetts power plants, effective from 2018 through 2050, later proposed as 310 Code Mass. Regs. § 7.74, the Cap Regulation. The department also weighed establishing a clean energy standard, which would require an increasing percentage of new clean energy to Massachusetts from retail suppliers; this standard was later proposed as 310 Code Mass. Regs. § 7.75 (CES Regulation).

On August 11, 2017, after consultation with the Department of Energy Resources, the agencies published the final Cap Regulation pursuant to §§ 3 (c ), (d ) ; the final CES Regulation pursuant to § 3 (c ) ; and four additional complementary regulations, pursuant to § 3 (d ). Starting from a 2018 aggregate carbon dioxide emissions limit of 9,149,979 metric tons, the Cap Regulation mandated that in-State fossil-fueled power plants decrease their emissions by 223,876 metric tons each year until the emissions reach 8,507,299 metric tons in 2020 and 1,791,019 metric tons in 2050. 310 Code Mass. Regs. § 7.74(5)(a ). Complementing the Cap Regulation's reduction on emissions, the CES Regulation established an increasing level of clean nonemitting electricity that retail sellers must purchase annually. See 310 Code Mass. Regs. § 7.75(4). In 2018, the requirement was sixteen per cent. Id. By 2050, a minimum of eighty per cent of retail electricity sold to Massachusetts customers will be from clean energy sources. Id.

On September 11, 2017, the plaintiffs filed their complaint in the Superior Court for judicial review of the agencies' rulemaking, pursuant to G. L. c. 30A. The plaintiffs' key contention was that the agencies acted unlawfully in promulgating the Cap Regulation. While the case was pending in the Superior Court, on January 31, 2018, a single justice of this court, pursuant to G. L. c. 211, § 4A, transferred the case to the county court. On February 9, 2018, the single justice reserved and reported the case to the full court for determination.

2. Discussion. a. Statutory authority to regulate greenhouse gas emission levels and limits associated with electric sector. As previously stated, § 3 (d ) of the act provides that "[t]he department shall promulgate regulations establishing a desired level of declining annual aggregate emission limits for sources or categories of sources that emit greenhouse gas emissions." The preceding section, § 3 (c ), provides that "[e]missions levels and limits associated with the electric sector shall be established by the executive office and the department, in consultation with the department of energy resources, based on consumption and purchases of electricity from the regional electric grid, taking into account the regional greenhouse gas initiative and the renewable portfolio standard." At issue in the instant case is the Cap Regulation, which establishes annually declining aggregate carbon dioxide emissions limits on electricity generating facilities located in the Commonwealth, pursuant to § 3 (d ). See 310 Code Mass. Regs. § 7.74(1).

The plaintiffs argue that the agencies may not impose an emissions cap on electricity generators under § 3 (d ), because § 3 (c ) specifically and separately regulates the electric sector. The agencies counter that although § 3 (c ) sets out specific procedures and requirements for regulation of the electric sector, it does not prohibit the department from imposing a declining emissions cap on that sector pursuant to § 3 (d ), as long as the limits satisfy the requirements of § 3 (c ). We conclude that § 3 (c ) and § 3 (d ) complement each other, and that the electric sector is one of the multiple categories of sources of emissions that may be regulated under § 3 (d ). Furthermore, the department's determination that it must impose decreasing emissions limits on the electric sector in order to accomplish its essential statutory purpose is amply supported.

"In assessing the legality of an administrative agency's properly promulgated regulations, we employ sequentially two well-defined principles. First, we determine, using conventional tools of statutory interpretation, whether the Legislature has spoken with certainty on the topic in question, and if we conclude that the statute is unambiguous, we give effect to the Legislature's intent" (footnoted omitted). Goldberg v. Board of Health of Granby, 444 Mass. 627, 632-633, 830 N.E.2d 207 (2005). "Second, if the Legislature has not addressed directly the pertinent issue, we determine whether the agency's resolution of that issue may 'be reconciled with the governing legislation.' " Id. at 633, 830 N.E.2d 207, quoting Nuclear Metals, Inc. v. Low-Level Radioactive Waste Mgt. Bd., 421 Mass. 196, 211, 656 N.E.2d 563 (1995). At the second stage, we afford "substantial deference" to agency expertise, and will uphold a challenged regulation "unless a statute unambiguously bars the agency's approach." Goldberg, supra, quoting Briggs v. Commonwealth, 429 Mass. 241, 253, 707 N.E.2d 355 (1999).

Taking these considerations together, we conclude that the agencies have the authority to promulgate regulations under § 3 (d ) to establish emission limits on the electric sector, and, as detailed below, our interpretation is consistent with the act's fundamental purpose of reducing greenhouse gas emissions, and combatting climate change, in Massachusetts. Kain, 474 Mass. at 300, 49 N.E.3d 1124. Furthermore, to the extent, if any, that the act is ambiguous, we conclude that the agencies' interpretation is reasonable and entitled to deference. The act certainly does not "unambiguously bar[ ] the agenc[ies'] approach."

Goldberg, 444 Mass. at 633, 830 N.E.2d 207.

The electric sector's transition away from fossil fuels is critical to reaching the sustainable future that the act envisions. Presently, the electric sector accounts for approximately twenty per cent of Statewide greenhouse gas emissions. See MA GHG Emissions Trends, MA GHG by Sector, https://www.mass.gov/service-details/ma-ghg-emission-trends [https://perma.cc/2F4B-M5RE]. Given that the electric sector is one of the largest in-State greenhouse gas emission sources, it would make little to no sense for the Legislature to have excluded it from the critical emission reduction requirements set out in § 3 (d ). There is also no express exclusion of the electric sector from § 3 (d ). Furthermore, in order to achieve its goal of reducing emissions by at least eighty per cent by 2050, "the Commonwealth must achieve a significant reduction in [greenhouse gas] emissions from transportation, the heating of buildings, and the electric sector. Because a significant percentage of vehicles and building systems must be electrified as a way to reduce [greenhouse gas] emissions," cutting emissions from the electric sector is a crucial initial step to achieving long-term progress in combatting climate change. See Executive Office of Energy and Environmental Affairs & Department of Environmental Protection, Response to Comment on: 310 Code Mass. Regs. § 7.74, at 13 (Aug. 2017).

The importance of decreasing greenhouse gases from the electric sector is particularly apparent when the act's fundamental purpose to "attain actual, measurable, and permanent emissions reductions in the Commonwealth" is considered in the context of § 3 (c ), including § 3 (c )'s emissions limits and consideration of trade allowances. Kain, 474 Mass. at 300, 49 N.E.3d 1124. See Commonwealth v. Diggs, 475 Mass. 79, 83, 54 N.E.3d 1115 (2016) (rejecting interpretation that would thwart statute's intended purpose). As we recognized in Kain, supra at 297-298, 49 N.E.3d 1124, "there is no way to ensure mass-based reductions in carbon dioxide emissions from power plants in the Commonwealth that participate in the RGGI," because they can purchase emission allowances from out-of-State generators. Id. at 297-298, 49 N.E.3d 1124. Additionally, "reductions from the RGGI regulation were [already] accounted for in the eighteen per cent reduction in emissions anticipated under the 'business as usual' projection calculated prior to the application of regulations under § 3 (d )." Id. at 297, 49 N.E.3d 1124. The RGGI regulatory regime regarding the electric sector is therefore not alone sufficient to satisfy the purposes of the act. The act is designed to go well beyond business as usual in terms of reducing emissions: to upend, rather than to uphold, the status quo. The electric sector is no exception.

Section 3 (d ) places no restriction on the categories of emissions sources that the department may regulate. Kain, 474 Mass. at 284 n.9, 290-291, 49 N.E.3d 1124. In Kain, we did observe that "the Legislature intended to treat emission reductions associated with the electric sector differently from reductions in other sectors of the economy." Id. at 297, 49 N.E.3d 1124. This is because there are considerations specific to the electric industry to take into account, particularly the regional grid, the RGGI framework, and the renewable energy portfolio standard (RPS); additionally, the department, in regulating the electric sector, must consult with the Department of Energy Resources and the executive office. G. L. c. 21N, § 3 (c ). Differential treatment of the electric sector, however, does not indicate its exclusion from § 3 (d ). "Specific statutory authority to act in a particular respect does not bar consistent action under general statutory authority."

Grocery Mfrs. of Am., Inc. v. Department of Pub. Health, 379 Mass. 70, 76, 393 N.E.2d 881 (1979). See Pepin v. Division of Fisheries & Wildlife, 467 Mass. 210, 224-226, 4 N.E.3d 875 (2014) (statute creating requirements for certain types of endangered species' habitats did not preclude agency from promulgating regulations to further general goal of protecting endangered species).

The department promulgated the Cap Regulation pursuant to § 3 (c )'s requirements; the department consulted with the executive office and the Department of Energy Resources, considered energy consumption from the regional grid, and analyzed how the Cap Regulation would interact with RGGI and the RPS. See 310 Code Mass. Regs. § 7.74(1) (Cap Regulation promulgated by department and executive office "following consultation with the Department of Energy Resources and based on the considerations specified in ... § 3 [c ]"). The Cap Regulation properly takes into account the specific considerations of the electric sector identified in section § 3 (c ), while including this large emitter of greenhouse gases in the ambitious emissions reduction regime of § 3 (d ), which is central to accomplishing the act's overarching purpose. The two statutory provisions work together and complement each other. They are not mutually exclusive.

In sum, we conclude that § 3 (d ) does not contain a regulatory exclusion for the electric or any sector, and we decline to read one in. "If that was the legislative intent, the wording of the statute could have easily reflected it. It does not" (footnote omitted). Rowley v. Massachusetts Elec. Co., 438 Mass. 798, 802, 784 N.E.2d 1085 (2003). The agencies' interpretation of how § 3 (c ) and (d ) may be construed together, is also reasonable, and therefore, entitled to deference. See Dowling v. Registrar of Motor Vehicles, 425 Mass. 523, 525, 682 N.E.2d 842 (1997). See also Pepin, 467 Mass. at 222, 4 N.E.3d 875, quoting Entergy Nuclear Generation Co. v. Department of Envtl. Protection, 459 Mass. 319, 331, 944 N.E.2d 1027 (2011) ("[A] regulation ... need not necessarily find support in a particular section of [the enabling statute]; it is enough if it carries out the scheme or design of the chapter and is thus consistent with it"). Because the Cap Regulation satisfies the requirements of both § 3 (c ) and § 3 (d ), the plaintiffs' argument that the regulation is ultra vires must fail.

b. Validity of 310 Code Mass. Regs. § 7.74. The plaintiffs contend that, even if the agencies are permitted to regulate the electric sector under § 3 (d ), the projected effects of the Cap Regulation render it arbitrary and capricious and inconsistent with the statutory purpose of reducing emissions. A properly promulgated regulation "has the force of law ... and must be accorded all the deference due to a statute." Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 723, 448 N.E.2d 367, cert. denied sub nom. Formaldehyde Inst., Inc. v. Frechette, 464 U.S. 936, 104 S.Ct. 345, 78 L.Ed.2d 312 (1983). A party challenging the validity of a regulation must prove "that the regulation is illegal, arbitrary, or capricious." Id. at 722, 448 N.E.2d 367. Such a plaintiff must establish "the absence of any conceivable grounds upon which [the rule] may be upheld." Purity Supreme, Inc. v. Attorney Gen., 380 Mass. 762, 776, 407 N.E.2d 297 (1980), quoting Colella v. State Racing Comm'n, 360 Mass. 152, 156, 274 N.E.2d 331 (1971). "That burden cannot be carried 'by arguing that the record does not affirmatively show facts which support the regulation.' " Dowell v. Commissioner of Transitional Assistance, 424 Mass. 610, 612, 677 N.E.2d 213 (1997), quoting Purity Supreme, Inc., supra. Rather, "we must apply all rational presumptions in favor of the validity of the administrative action and not declare it void unless its provisions cannot by any reasonable construction be interpreted in harmony with the legislative mandate." Consolidated Cigar Corp. v. Department of Pub. Health, 372 Mass. 844, 855, 364 N.E.2d 1202 (1977). However, "a regulation that is irreconcilable with an agency's enabling legislation cannot stand." Quincy v. Massachusetts Water Resources Auth., 421 Mass. 463, 468, 658 N.E.2d 145 (1995).

Here, the plaintiffs build their case around the possibility that the Cap Regulation may cause modest emissions leakage. "Leakage," as defined in G. L. c. 21N, § 1, is "the offset of a reduction in emissions of greenhouse gases within the [C]ommonwealth by an increase in emissions of greenhouse gases outside the [C]ommonwealth." The plaintiffs contend that generators within Massachusetts will produce less electricity in response to costs imposed by the Cap Regulation; as a result, Massachusetts will import more electricity from higher-emitting generators outside the State. Because the act directs the agencies to reduce Statewide emissions -- which includes greenhouse gases associated with the out-of-State production of electricity consumed in the Commonwealth -- the plaintiffs argue that this leakage runs contrary to the act's purpose. See G. L. c. 21N, § 1.

There are, however, multiple conceivable bases to support the rule. See Massachusetts Fed'n of Teachers, AFT, AFL-CIO v. Board of Educ., 436 Mass. 763, 772, 767 N.E.2d 549 (2002). First, the Cap Regulation seeks to reduce emissions generated within the Commonwealth. As a recent baseline, in 2014, approximately 14,900,000 metric tons of carbon dioxide emissions was associated with the electric sector. The Cap Regulation sets forth a declining emissions limit from 9,149,979 metric tons of carbon dioxide in 2018 to 8,507,299 metric tons of carbon dioxide in 2020. See 310 Code Mass. Regs. § 7.74(5)(a). For the purposes of long-term planning and forecasting, the Cap Regulation also sets forth the long-term goal for emissions generated within the Commonwealth of 1,791,019 metric tons of carbon dioxide in 2050.

Additionally, as the agencies contend, the Cap Regulation's impact cannot be analyzed in a vacuum. Indeed, it was promulgated in concert with the CES Regulation, and the two rules were expressly "designed to work together to maximize the reduction of greenhouse gas emissions." See Summary of Regulations: 310 Code Mass. Regs. §§ 7.74, 7.75 (attachment to filing entry form for final regulation). The CES Regulation requires retail electricity providers to procure an increasing percentage of electricity from clean energy sources each year. See 310 Code Mass. Regs. § 7.75(4). Because of the emissions reductions that will occur as a result of the CES Regulation, the agencies predict that the Cap Regulation's limit on greenhouse gases will be met without any decrease in production by Massachusetts fossil fuel generators. They predict that, as a result, little or no leakage will occur, because it will be unnecessary to shift to out-of-State producers in order to comply with the Cap Regulation.

Furthermore, even if the Cap Regulation does result in an increase in electricity imports, the agencies project that an increasing percentage of those imports will be derived from zero-emission sources, in part due to the CES Regulation's mandate that the Commonwealth consume greater percentages of clean energy each year. Finally, far from causing increased greenhouse gas emissions from out-of-State generators, according to the agencies, the two regulations together will send a market signal that Massachusetts' neighbors should invest in clean energy development in order to satisfy the Commonwealth's increasing demand for renewable energy. To the extent that the agencies' projections rely on their own interpretations of these regulations, they are entitled to deference. Biogen IDEC MA, Inc. v. Treasurer & Receiver Gen., 454 Mass. 174, 184, 908 N.E.2d 740 (2009). In sum, the plaintiffs are far from showing "the absence of any conceivable grounds upon which [the rule] may be upheld." Massachusetts Fed'n of Teachers, AFT, AFL-CIO, 436 Mass. at 772, 767 N.E.2d 549, quoting Purity, Supreme, Inc., 380 Mass. at 776, 407 N.E.2d 297.

c. Regulations promulgated under G. L. c. 21N, § 3 ( d ) , beyond December 31, 2020. Section 16 of the act provides that "[t]he department ... shall promulgate regulations pursuant to [ § 3 (d ) ] not later than January 1, 2012, which regulations shall take effect on January 1, 2013, and shall expire on December 31, 2020." The plaintiffs contend that § 16 of the act clearly and unambiguously invalidates any emission limits beyond December 31, 2020, because the provision contains an "unambiguous sunset date" for § 3 (d ). We disagree. The most sensible reading of § 16 is that, after December 31, 2020, only the current regulations promulgated under § 3 (d ) expire. The Department's authority and obligation to promulgate new regulations under § 3 (d ) after December 31, 2020, is undisturbed. See Kain, 474 Mass. at 289 n.14, 49 N.E.3d 1124 ("sunset provision exists because after 2020, new annual limitations on emissions would have to be issued to ensure that Statewide limit for 2030, which has yet to be established, will be met").

"The court does not determine the plain meaning of a statute in isolation" but rather in "consideration of the surrounding text, structure, and purpose of the Massachusetts act" from which this subsection is derived (citation omitted). ENGIE Gas & LNG LLC v. Department of Pub. Utils., 475 Mass. 191, 199, 56 N.E.3d 740 (2016). "Moreover, our interpretation of statutes is not restricted to determining only their 'simple, literal or strict verbal meaning' but also considers their 'development, their progression through the legislative body, the history of the times, prior legislation, contemporary customs and conditions and the system of positive law of which they are part ...." Kain, 474 Mass. at 286, 49 N.E.3d 1124, quoting Oxford v. Oxford Water Co., 391 Mass. 581, 588, 463 N.E.2d 330 (1984).

First, § 16 of the act's surrounding text and structure is instructive. Nestled within §§ 10-18, this section is focused on implementation deadlines, not termination. Kain, 474 Mass. at 283, 49 N.E.3d 1124, citing St. 2008, c. 298, §§ 10-18 ("The design of the act is synergistic, imposing numerous directives and timelines on the [S]ecretary [of Energy and Environmental Affairs] and the department to perform certain duties, subject to deadlines."). Second, the act's purpose is of crucial importance. The long-term goal of the act is to ensure that the Commonwealth meets the 2050 Statewide emission limit of at least eighty per cent below the 1990 level. See G. L. c. 21N, § 3 (b ). But to set the Commonwealth on a course to meet this limit, the year 2020, as the first and nearest short-term goal, is of special importance. See, e.g., G. L. c. 21N, §§ 3 (a ), (b ), 4 ; Secretary of Energy and Environmental Affairs, Massachusetts Clean Energy and Climate Plan for 2020, at 12 (updated Dec. 31, 2015), https://www.mass.gov/files/documents/2017/12/06/Clean% 20Energy% 20and% 20Climate% 20Plan% 20for% 202020.pdf [https://perma.cc /VWG2-PKQP]. It is a crucial step along the way, but not a termination point in any sense. The existing regulations will sunset but will be replaced by new regulations taking into account updated information. To hold that the ability to set declining annual aggregate emission limits under § 3 (d ) permanently expires would create an absurd result: a long-term 2050 Statewide emissions goal without, after December 31, 2020, any tools to reach it. See Flemings v. Contributory Retirement Appeal Bd., 431 Mass. 374, 375-376, 727 N.E.2d 1147 (2000) ("If a sensible construction is available, we shall not construe a statute to make a nullity of pertinent provisions or to produce absurd results").

We conclude that the Legislature did not intend to render § 3 (d ) meaningless after December 31, 2020. Rather, the department was expected and required to promulgate new regulations at that time, based on updated information, to ensure that the future Statewide limits for 2030, 2040, and 2050 will be met. See Kain, 474 Mass. at 289 n.14, 49 N.E.3d 1124 ("after 2020, new annual limitations on emissions would have to be issued").

3. Conclusion. For the reasons discussed, we conclude that the department has the authority to promulgate regulations under § 3 (d ) to establish emission limits on the electric sector. We also conclude that the Cap Regulation was properly promulgated, has the force of law, and must be accorded all the deference due to a statute. Finally, we conclude that § 3 (d ) remains in effect after December 31, 2020, and that the department shall promulgate new regulations to ensure that the interim and 2050 Statewide limits will be met.

We remand the matter to the single justice of the county court, where an order of remand to the Superior Court shall issue for further proceedings consistent with this opinion.

So ordered.

      In August, 2018, the Department of Environmental Protection (department) amended 310 Code Mass. Regs. § 7.74 (Cap Regulation). Those amendments do not affect the present case.

      We acknowledge the amicus brief submitted by Conservation Law Foundation.

      The Global Warming Solutions Act (act) defines "greenhouse gas" as "any chemical or physical substance that is emitted into the air and that the department may reasonably anticipate will cause or contribute to climate change including, but not limited to, carbon dioxide, methane, nitrous oxide, hydrofluorocarbons, perfluorocarbons and sulfur hexafluoride." G. L. c. 21N, § 1.

      The 1990 baseline was determined to be 94 million metric tons of carbon dioxide equivalent, of which 25.6 million was associated with electric generation. See Department of Environmental Protection, Statewide Greenhouse Gas Emissions Level: 1990 Baseline and 2020 Business as Usual Projection, at 4 (July 1, 2009), https://www.mass.gov/files/documents/2016/08/or/1990-2020-final.pdf [https://perma.cc/CN6Y-HGGX]. The 2020 "business as usual" projection was also estimated to be 94 million metric tons of carbon dioxide. Id. at 5.

      The 2050 Statewide emissions limit would thus be under 19 million metric tons of carbon dioxide equivalent.

      The regional greenhouse gas initiative (RGGI) is the nation's first mandatory market-based program to reduce emissions of carbon dioxide. Participating States have established a regional cap on carbon dioxide emissions from the electric sector and require their respective in-State power plants to possess a tradable carbon dioxide allowance for each ton of carbon dioxide they emit. The RGGI cap declines 2.5 per cent each year from 2017 to 2020.
      The RGGI is related to but distinct from the Cap Regulation. The RGGI controls greenhouse gas emissions across the nine States that participate in the RGGI, but does not restrict emissions in any particular State. See The Regional Greenhouse Gas Initiative, Elements of RGGI, https://www.rggi.org/program-overview-and-design/elements [https://perma.cc/M59X-JV25]. The Cap Regulation controls emissions of electricity-generating facilities in Massachusetts, but not in other States. See Department of Environmental Protection, Fact Sheet: Electricity Sector Regulations, http://www.massdep.org/BAW/air/3dfs-electricity.pdf [https://perma.cc/PVD2-ESAU].
      Predating the RGGI, the renewable energy portfolio standard (RPS) was established in 1997. See G. L. c. 25A, § 11F, inserted by St. 1997, c. 164, § 50; 225 Code Mass. Regs. §§ 14.00, 15.00 (2016). The RPS requires that retail suppliers of electricity deliver a certain percentage of the electricity generated from renewable energy sources such as wind, solar, and hydroelectric. Renewable energy produced by generators that qualify for the RPS counts toward compliance with 310 Code Mass. Regs. § 7.75 (2017) (Clean Energy Standard Regulation), discussed infra. See Department of Environmental Protection, Fact Sheet: Electricity Sector Regulations, supra.

      Relatedly, the act also directs that the Commonwealth and its agencies promulgate regulations that "encourage renewable sources of energy in the sectors of energy generation, buildings and transportation." G. L. c. 21N, § 6.

      Subsequently, Footprint Power Salem Harbor Development LP and Massachusetts Municipal Wholesale Electric Company successfully moved to intervene as plaintiffs. In addition to the plaintiffs in the present case, Calpine Corporation also filed a complaint in the Superior Court seeking review of the Cap Regulation, and that case was consolidated with this one. Calpine Corporation's case was thereafter resolved in the Superior Court and is not before us in this appeal.

      The plaintiffs' argument that the agencies' interpretation of the act is not entitled to deference because the act is outside their sphere of expertise is unavailing. See Kain v. Department of Envtl. Protection, 474 Mass. 278, 286, 292, 49 N.E.3d 1124 (2016) ("the department and the [S]ecretary [of Energy and Environmental Affairs (secretary) ] have considerable expertise in addressing the challenges that climate change poses to the Commonwealth"). See also St. 2008, c. 298, §§ 3, 4 (directing department and secretary to implement act); Dowling v. Registrar of Motor Vehicles, 425 Mass. 523, 525, 682 N.E.2d 842 (1997), quoting Massachusetts Medical Soc'y v. Commissioner of Ins., 402 Mass. 44, 62, 520 N.E.2d 1288 (1988) ("an administrative agency's interpretation of a statute within its charge is accorded weight and deference").

      Additionally, with the statutory scheme imposing lower emission limits over time, the Legislature was aware that some leakage was inevitable; indeed, the regulations must be evaluated to determine whether they minimize leakage. See G. L. c. 21N, § 5 (vii). Here, even if the plaintiff's modeling is taken at face value, the most severe leakage projection would constitute less than one per cent of total New England greenhouse gas emissions in the one year, 2025, modeled. Some doubts as to whether leakage may occur need not prevent the department from acting to ensure that the electric sector is working towards the act's purpose. See Borden, Inc. v. Commissioner of Pub. Health, 388 Mass. 707, 734, 448 N.E.2d 367 (1983).

      The plaintiffs, notably, do not take a position or contest the agencies' position that the Cap Regulation and 310 Code Mass. Regs. § 7.75, working together, would reduce greenhouse gas emissions.

      Additionally, because renewable resources have virtually no operating costs and generators can submit very low bids into the hourly wholesale electricity markets, clean energy resources will be dispatched first. Even if the Cap Regulation imposes a constraint on in-State power plants, it is mere speculation that out-of-State electric suppliers will necessarily generate higher rates of greenhouse gas emissions, especially given that other States have similarly committed to ambitious targets for reductions of greenhouse gas emissions. See, e.g., Conn. Gen. Stat. § 22a-200a (eighty per cent reduction of greenhouse gas emissions below 2001 level by 2050); R.I. Gen. Laws § 42-6.2-2 (eighty per cent reduction of greenhouse gas emissions below 1990 levels by 2050).


text:
    COMMONWEALTH v. Eric A. RICHARDS.
    SJC-12466
    Supreme Judicial Court of Massachusetts, Suffolk..
    Argued May 10, 2018 Decided September 5, 2018
    Robert J. Bender, Assistant District Attorney (Timothy Ferriter, Assistant District Attorney, also present) for the Commonwealth.
    Steven M. Vaillancourt, Fitchburg (Andrew Sprow, Topsfield, also present) for the defendant.
    Present: Gants, C.J., Lenk, Gaziano, Lowy, Budd, Cypher, & Kafker, JJ.
   KAFKER, J.

In 2010, the defendant's driver's license was suspended for his refusal to consent to a breathalyzer after his arrest for operating a motor vehicle while under the influence of alcohol (OUI). Because the defendant had three prior convictions of OUI when he refused the breathalyzer, his license was subject to a lifetime suspension. The defendant was later found not guilty of the 2010 OUI charge, and he immediately moved to have his license restored, pursuant to G. L. c. 90, § 24 (1) (f ) (1). His motion was denied. The defendant made three subsequent motions for restoration of his license in 2011, 2015, and 2017. A judge in the District Court granted the defendant's 2017 motion for restoration of his license.

The Commonwealth filed a petition for relief with the single justice, pursuant to G. L. c. 211, § 3, arguing that the defendant's license could not be restored under the statute because he was entitled only to an "immediate" hearing on restoration of his license, not one held seven years later, and that allowance of the motion for the reasons stated by the judge would essentially amount to an unconstitutional reformulation of the statute. The single justice reserved and reported the case to the full court. Because the plain language of the statute and the legislative history preclude the relief requested, we reverse.

1. Background. a. Statutory scheme. "In Massachusetts, one's right to operate a motor vehicle is a privilege voluntarily granted. ... Continued possession of this privilege is conditioned on obedience to the Legislature's comprehensive regulatory scheme aimed at regulating the motorways and keeping them safe." Luk v. Commonwealth, 421 Mass. 415, 423, 658 N.E.2d 664 (1995). Toward this end, an individual who drives on a public road is "deemed to have consented to submit to a chemical test or analysis of his breath or blood in the event that he is arrested for operating a motor vehicle while under the influence of intoxicating liquor." G. L. c. 90, § 24 (1) (f ) (1). Failing or refusing to take such a test results in license suspension. Id. Such "suspension serves to deter persons from driving while intoxicated; it effectuates the Commonwealth's interest in obtaining reliable and relevant evidence by inducing suspected drunk drivers to take the breath test; and it promotes safety on the highways by summary removal of dangerous drivers." Luk, supra at 425, 658 N.E.2d 664. See Mackey v. Montrym, 443 U.S. 1, 18, 99 S.Ct. 2612, 61 L.Ed.2d 321 (1979) (same).

A comparison of the suspensions imposed on, and remedies available to, drivers who take the breathalyzer test and those who refuse it is informative. An individual who fails the breathalyzer and is subsequently convicted of OUI faces significant suspension consequences. See G. L. c. 90, § 24 (1) (c ). Individuals with no prior OUI convictions who are subsequently convicted of OUI face a one-year suspension of their license. G. L. c. 90, § 24 (1) (c ) (1). Individuals with one prior OUI conviction face a two-year suspension.

G. L. c. 90, § 24 (1) (c ) (2). Individuals with two prior OUI convictions face an eight-year suspension. G. L. c. 90, § 24 (1) (c ) (3). Individuals with three prior OUI convictions face a ten-year suspension. G. L. c. 90, § 24 (1) (c ) (3 ½). Individuals with four prior OUI convictions face a lifetime suspension. G. L. c. 90, § 24 (1) (c ) (3 ¾). When an individual's license is suspended pursuant to § 24 (1) (c ), the statute permits the individual to apply for issuance of a limited license on the ground of hardship. The statute does not, however, permit individuals subject to a lifetime suspension to seek such a hardship license. See G. L. c. 90, § 24 (1) (c ) (3 ¾).

An individual who refuses to take the breathalyzer faces suspension consequences irrespective of whether he or she is subsequently convicted of OUI. See G. L. c. 90, § 24 (1) (f ) (1). Individuals with no prior OUI convictions who refuse to take the test face a 180-day suspension of their license. Id. Individuals with one prior OUI conviction face a three-year suspension. Id. Individuals with two prior OUI convictions face a five-year suspension. Id. Individuals with three prior OUI convictions face a lifetime suspension. Id. Unlike nonlifetime suspensions imposed pursuant to § 24 (1) (c ), if an individual's license is suspended for refusing to take the breathalyzer, the individual is not permitted to apply for a hardship license. See G. L. c. 90, § 24 (1) (f ) (1).

The statute does, however, provide an avenue for relief for individuals who refuse to take the test but are subsequently acquitted of OUI. See G. L. c. 90, § 24 (1) (f ) (1). The statute provides:

"the defendant may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section, ... and in the absence of any other alcohol related charges pending against said defendant, apply for and be immediately granted a hearing before the court which took final action on the charges for the purpose of requesting the restoration of said license. At said hearing, there shall be a rebuttable presumption that said license be restored, unless the commonwealth shall establish, by a fair preponderance of the evidence, that restoration of said license would likely endanger the public safety. In all such instances, the court shall issue written findings of fact with its decision."

Id. On appeal, we must determine whether the statute authorizes a defendant who was acquitted to make belated, additional motions to restore his or her license after his or her immediate motion is denied. For the reasons discussed, we conclude that it does not.

b. Facts. On May 6, 2010, the defendant was arrested for OUI. He had three prior OUI convictions from 1989, 1996, and 2001. On his arrest, he was informed that if he refused to take the breathalyzer, his license would be suspended, pursuant to § 24 (1) (f ) (1). The defendant chose to refuse the test. His license was immediately suspended, and he was charged with OUI, fourth offense.

The next day, the registry of motor vehicles suspended the defendant's right to operate a motor vehicle for life, pursuant to § 24 (1) (f ) (1). The defendant did not seek relief under G. L. c. 90, § 24 (1) (g ).

On November 8, 2010, a jury found the defendant not guilty of OUI, fourth offense, and the defendant immediately moved to have his driver's license restored. The judge who had presided over the defendant's trial considered the motion, taking into account the evidence presented at trial as well as the police report and the defendant's criminal and driving history. On November 16, 2010, the judge issued a ruling denying the motion, concluding that "restoration of the defendant's license would likely endanger public safety." The defendant filed a notice of appeal, but ultimately did not seek relief in the Superior Court.

Nine months later, in August, 2011, the defendant filed a motion before the same judge to "reconsider" the denial of the defendant's motion to restore his driver's license. Following an evidentiary hearing, the judge denied the motion, citing facts about the defendant's criminal and driving history from the judge's original decision. The defendant appealed from the August, 2011, denial, but the appeal was dismissed for lack of prosecution.

Five years after the denial of the defendant's original motion, in November of 2015, the defendant filed a renewed motion to restore his driver's license. He received a hearing on the motion in January, 2016. The 2016 motion judge was not the judge from the defendant's trial and first two motions, as that judge had since retired. The 2016 motion judge heard additional facts and evidence in support of the defendant's motion, but ultimately issued a ruling stating that the motion was denied "at this time."

In August, 2017, nearly seven years after the denial of the original motion, the defendant again filed a motion to restore his driver's license. The motion, filed pro se, stated that the defendant was seeking to "restore [his] driver's license or try to get a work license from 5:00 A.M. [to] 5:00 P.M. " The defendant provided additional evidence in support of his motion, including "information regarding his long time sobriety, lack of any [subsequent] alcohol related offenses, and employment." The 2017 motion was heard by a judge who had not presided over any of the prior motions or the trial. The Commonwealth objected to the hearing, arguing that G. L. c. 90, § 24, only authorized the defendant to receive an immediate hearing before the trial judge, which he had received in 2010. The 2017 motion judge, however, determined that nothing in the statute or the case law indicated that "an individual is barred by time or requests for reconsideration." She also concluded that the Commonwealth had not made this argument at any of the prior motions, and thus the Commonwealth's objection was "not timely." The 2017 motion judge further determined that the Commonwealth had "failed to establish that reinstatement of [the] defendant's driver's license would endanger public safety," and granted the defendant's motion. The order to restore the defendant's license has been stayed pending the disposition of this case.

2. Discussion. On appeal, the defendant characterizes the 2017 motion judge as ruling on "reconsideration" of the defendant's initial 2010 motion for restoration of his license. The defendant's 2017 motion was not, however, filed as a motion for reconsideration of his 2010 motion. Indeed, the only motion for reconsideration in this case took place in 2011, and was heard by the judge who had presided over the trial and who had considered the initial motion. Accordingly, the motion is more properly considered a new motion for restoration.

Regardless, whether characterized as a renewed motion for restoration or a motion for reconsideration, the 2017 motion was not authorized by G. L. c. 90, § 24, as it did not satisfy the immediacy requirement of the statute. Indeed, the judge's allowance of such a motion essentially created a judicial hardship exception for a defendant who had refused the breathalyzer, where the Legislature expressly chose to prohibit such a remedy.

To determine the legality of the 2017 motion, we look first to the plain meaning of the statutory language in § 24 (1) (f ) (1). See Millis Pub. Sch. v. M.P., 478 Mass. 767, 775, 89 N.E.3d 1170 (2018). "The effect given to statutory language should be consistent with its plain language." Retirement Bd. of Stoneham v. Contributory Retirement Appeal Bd., 476 Mass. 130, 135, 65 N.E.3d 650 (2016). "Where the language is clear and unambiguous, it is to be given its 'ordinary meaning.' " Millis Pub. Sch., supra, quoting Commonwealth v. Mogelinski, 466 Mass. 627, 633, 1 N.E.3d 237 (2013).

Here, the statute provides that the defendant "may immediately, upon the entry of a not guilty finding or dismissal of all charges under this section," move to request restoration of his or her license. G. L. c. 90, § 24 (1) (f ) (1). The text does not state that the defendant may move for, or receive, such hearing again at a later time. Indeed, the statute makes reference to the immediate nature of the proceeding not once, but twice. It provides for a defendant to make a motion for restoration of his or her license "immediately," and a hearing on such motion must be granted "immediately." See id. The statute also requires such motion to be made "before the court which took final action on the charges." Id. Thus, by its plain language, the statutory provision indicates that such motions are to be made and heard immediately after the defendant's acquittal, by the court which presided over the OUI proceedings, based on the defendant's circumstances at the time of the acquittal, not years later.

By requiring an "immediate" motion and an "immediate" hearing before the judge who presided over the OUI proceedings, the plain language also indicates that the Legislature intended for the determination whether restoration "would likely endanger the public safety" to be made on the basis of the facts as they exist at the time of the defendant's acquittal, and in the context of the evidence that was then presented. See Water Dep't of Fairhaven v. Department of Envtl. Protection, 455 Mass. 740, 744, 920 N.E.2d 33 (2010) (language of statute is primary source of insight into legislative intent).

Nevertheless, the defendant contends that the provision should be read broadly to permit the defendant to make such a motion immediately, but not require it. The defendant also asserts that additional information, including the defendant's circumstances years after the acquittal, may be appropriately considered. Indeed, the 2017 motion judge's ruling was based entirely on new information, particularly the defendant's continued sobriety in the intervening years, lack of subsequent offenses, and gainful employment. This is the very type of information that would be considered by the registrar of motor vehicles (registrar) when deciding whether to issue a hardship license under § 24 (1) (c ) for defendants who had taken the breathalyzer test.

Such an expansive reading of § 24 (1) (f ) (1) ignores other relevant provisions of the statute and the over-all statutory scheme. "[I]f reasonably possible, all parts [of a statute must] be construed as consistent with each other" (citation omitted). Custody of Victoria, 473 Mass. 64, 73, 39 N.E.3d 418 (2015). When the language is read in context, it is clear that the Legislature intended the motion for restoration to be a very limited, time-defined exception to the general rules of suspension for refusal. The preceding phrase in the statute provides that, for defendants whose license has been suspended for refusing the breathalyzer, "[n]o license or right to operate shall be restored under any circumstances" (emphasis added). G. L. c. 90, § 24 (1) (f ) (1). Section 24 (1) (f ) (1) also explicitly provides that "no restricted or hardship permits shall be issued during the suspension period imposed by [this section]" (emphasis added). These categorical prohibitions apply to all defendants who refused to take a breathalyzer, not just those with multiple OUI convictions.

This type of categorical prohibition also stands in express and stark contrast to the more open-ended hardship exception available under § 24 (1) (c ) to defendants who agreed to take the breathalyzer and were convicted. Such defendants may apply for a hardship exception unless they have four prior OUI convictions. See G. L. c. 90, § 24 (1) (c ) (3 ¾). For example, defendants with three prior OUI convictions who consent to the breathalyzer and are convicted may apply for a hardship exception under the following conditions:

"such person may, after the expiration of five years from the date of the conviction, apply for and shall be granted a hearing before the registrar for the purpose of requesting the issuance of a new license for employment or education purposes which license shall be effective for an identical twelve hour period every day on the grounds of hardship and a showing by the person that the causes of the present and past violations have been dealt with or brought under control and the registrar may, in his discretion, issue such license under such terms and conditions as he deems appropriate and necessary."

G. L. c. 90, § 24 (1) (c ) (3 ½). Had the defendant in this case consented to the breathalyzer and been convicted, he would have been able to apply to the registrar for a hardship exception on the basis of new information about his sobriety and employment. The statute, however, consistently treats those who refuse to take the breathalyzer differently. They are not entitled to hardship exceptions, and there is nothing in § 24 (1) (f ) (1) to the contrary.

The relevant inquiry is therefore whether, at the time of the immediate hearing, restoration of the defendant's license "would likely endanger the public safety," not whether "the causes of the present and past violations have been dealt with or brought under control" at a later date, as in the case of a hardship application. The statutory language, read as a whole, clearly and consistently demonstrates that the Legislature intended the motion for restoration to be a narrow exception to the general rules of suspension for refusal, not the broader, more open-ended remedy available for defendants who have taken the breathalyzer test. See Souza v. Registrar of Motor Vehicles, 462 Mass. 227, 232, 967 N.E.2d 1095 (2012) (use of language in one subsection of § 24 but not another is significant).

This understanding of the statutory language is also consistent with the legislative history. The current refusal suspension scheme was inserted in 2005, when the Legislature enacted Melanie's Law, which "increas[ed] the periods of license suspension for refusal to submit to a breathalyzer test." Id. at 231, 967 N.E.2d 1095. See St. 2005, c. 122, § 9. Prior to the passage of Melanie's Law, refusing to take a breathalyzer could result in, at most, an eighteen-month license suspension. See 2005 House Doc. No. 4099. The Governor, who filed the original legislation, noted that "[t]oo often experienced drunk drivers refuse to cooperate with arresting officers, because they know that their refusal will significantly increase their changes of acquittal." 2005 House Doc. No. 4453. The changes to the refusal suspension scheme were thus designed to "create an increased incentive to submit to [breathalyzer or field sobriety] tests." See 2005 House Doc. No. 4099.

Providing defendants with a very narrow avenue for relief on acquittal comports with these public safety concerns. Unlike suspensions pursuant to § 24 (1) (c ), which target dangerous drivers by number of OUI convictions and permit the registrar to issue hardship licenses "when the causes of the present and past violations have been dealt with or brought under control," suspensions pursuant to § 24 (1) (f ) (1) target drivers who have not fully cooperated with authorities and otherwise stand to benefit from refusing to comply with the breathalyzer. See Mackey, 443 U.S. at 19, 99 S.Ct. 2612 ("A state plainly has the right to offer incentives for taking a test that provides the most reliable form of evidence of intoxication for use in subsequent proceedings"). The avenue for relief under § 24 (1) (f ) (1) is therefore much narrower and shorter.

If a defendant could continue to make new motions for restoration indefinitely, based on considerations that justify the hardship exception for those who agreed to take the breathalyzer, it would undercut the Legislature's decision to impose harsh suspension consequences that discourage refusal. Had the Legislature intended to allow an exception for hardship, as it does under § 24 (1) (c ), it would have so provided. Instead, the Legislature chose to impose harsher consequences for refusal than for conviction in order to increase breathalyzer compliance and "[decrease] the number of drunk drivers who escape the consequences of their actions." Cf. 2005 House Doc. No. 4453. 3. Conclusion. For the reasons discussed, the decision granting the defendant's motion for restoration of his driver's license is reversed.

So ordered.

      Where a defendant refuses the breathalyzer and is later convicted, the suspension period triggered by the conviction will "run consecutively and not concurrently" with the suspension triggered by the refusal. See G. L. c. 90, § 24 (1) (f )(1).

      Pursuant to G. L. c. 90, § 24 (1) (g ), a defendant may seek a hearing before the registrar of motor vehicles within fifteen days of arrest. This avenue of relief is very limited, however. At such a hearing, a defendant may contest only the following: (1) whether the police office had reasonable grounds to believe the defendant was operating a motor vehicle while under the influence of alcohol; (2) whether the defendant was placed under arrest; and (3) whether the defendant refused to submit to a breathalyzer or blood test. Id.

      Pursuant to our decision in Commonwealth v. Bauer, 455 Mass. 497, 499-500, 918 N.E.2d 60 (2009), "litigants may obtain review of § 24 (1) (f )(1) license restoration orders entered in the District Court by means of a certiorari action brought in the Superior Court." See G. L. c. 249, § 4.

      The stated reason for the dismissal was listed as "[b]rief/appendix not received or status report not filed."

      Those circumstances would include his prior driving record, and other evidence of alcohol abuse.

      There is one exception to the categorical prohibition against hardship licenses for those who refuse to take a breathalyzer. See 1 Massachusetts Motor Vehicle Offenses § 1.3 (Mass. Cont. Legal Educ. 2d ed. 2009 & Supp. 2016). "Notwithstanding the provisions of ... [G. L. c. 90, § 24 (1) (f )(1) ], [if a court has assigned a defendant to an alcohol education, treatment, or rehabilitation program,] a defendant may immediately upon entering [such] program ... apply to the registrar for consideration of a limited license for hardship purposes." G. L. c. 90, § 24D. This avenue for relief, however, is also very limited and was not available to the defendant in this case. Eligibility is limited to defendants who have either (1) never before been convicted of OUI or been assigned to a program; or (2) once before been convicted of OUI or assigned to a program, ten or more years before the present offense. See id.

      Specifically, under the pre-2005 scheme, refusal resulted in a 180-day suspension for drivers with no prior OUI convictions, a twelve-month suspension for drivers with one prior OUI conviction, and an eighteen-month suspension for drivers with two prior OUI convictions. See 2005 House Doc. No. 4099.

      We also note that, even under § 24 (1) (c ), defendants subject to a lifetime suspension are not eligible to apply for a hardship license.