How The Global Warming Response Act Was Stripped
Ugly Legislative History Reveals How The DEP Regulatory Teeth Were Removed
This post is for the legal eagles and those that like to get into the weeds – or those who seek to fact check my prior post:
Here is the NJ Legislature’s legislative history of the Global Warming Response Act.
Obviously, if I can do this analysis, the $600/hour corporate lawyers already have the litigation briefs drafted. DEP’s proposed CO2 rule is very likely to be successfully legally challenged for the reasons I outlined in my prior post.
To understand how badly the bill was gutted and why DEP does not have authority to regulate GHG emissions and enforce the GHG reduction aspirational goals, compare the version signed into law with the DEP regulatory powers and enforcement provisions in Section 4 and 5 of the introduced version, specifically:.
- “enforceable limits”;
- “requirements on sources of greenhouse gas emissions to achieve these reductions”;
- “monitoring compliance with the emissions limits“; and
- “monitoring compliance with the requirements established “
All of those teeth were stripped out of the bill signed into law.
Here are the versions of the bill:
- Introduced version (7/6/06);
- stripped in the first Senate Committee Substitute (SCS) (5/4/07);
- further stripped in the Second Senate Committee Substitute (SCS/SCS) (6/18/2007) and
- final version, which was signed into law (6/18/07) – identical to the Senate SCS/SCS version passed on 6/18/07).
The compliance dates were all scaled back as well, leading to the kind of delays where a full 15 YEARS later, DEP is finally attempting to promulgate regulations.
Here are the links to the different versions of the bill so you can read them and confirm what I’ve written:
- S2114 (SCS/SCS)/A3301[1R]/ACS (the version signed into law as P.L. 2007, c. 112)
- S2114 (SCS/SCS) (June 8, 2007)
- S2114 (SCS) (May 4, 2007)
- Introduced version – S2114 (June 6, 2006)
The text in boldface is from the introduced version of the bill – it was all deleted.
The enforcement and regulatory teeth were knocked out and DEP was put on a very short leash (i.e the DEP role was limited to “monitoring and reporting” emissions, not: 1) regulating them, or 2) setting emission limits, or 3) setting “enforceable limits”, or 4) adopting regulations that established “enforceable reductions”, and 5) not enforcing emission limits on individual sources with reference to compliance with the statewide goals. Even DEP’s powers over emissions from gas pipelines was limited to “monitoring”).
Here is the relevant deleted text from the Introduced version – S2114 (July 7, 2006) (Buono (D) Kean (R))
Section 4
4. a. No later than one year after the effective date of this act, the Department of Environmental Protection shall establish:
(1) inventories of the greenhouse gas emissions in the State;
(2) inventories of the 1990 levels of greenhouse gas emissions in the State;
(3) priorities for the reduction of types of greenhouse gas emissions to be reduced pursuant to this act; and
(4) by rules and regulations, adopted pursuant to the “Administrative Procedures Act” P.L. 1968, c.410 (C.52:14B-1 et seq.) the percentage reduction below the 1990 levels of greenhouse gas emissions to be achieved by the year 2020.
b. No later than January 1, 2020, the levels of greenhouse gas emissions in the State shall be reduced to the percentage below the 1990 levels of these emissions established by the department pursuant to subsection a. of this section.
Section 5
5. a. On or before January 1, 2008, the department shall adopt, pursuant to the “Administrative Procedures Act,” P.L.1968, c.410 (C.52:14B-1 et seq.), rules and regulations establishing a greenhouse gas emissions monitoring and reduction program to:
(1) monitor and report greenhouse gas emissions levels in the State; and
(2) achieve Statewide the percentage reduction below the 1990 greenhouse gas emissions levels set by the department pursuant to section 4 of this act.
The rules and regulations shall also establish a series of enforceable limits that gradually reduce greenhouse gas emissions levels to the 2020 limit set by the department pursuant to section 4 of this act, and requirements on sources of greenhouse gas emissions to achieve these reductions. The first of these limits shall take effect on January 1, 2012, with additional limits taking effect on January 1 of subsequent years as determined by the department.
b. In developing these rules and regulations, the department shall take into account projected reductions in greenhouse gas emissions and other emissions reductions required pursuant to State emissions control programs otherwise established by law. The greenhouse gas emissions limits shall be expressed in total tons of allowable greenhouse gas emissions, expressed in carbon dioxide equivalents, and shall include, but shall not be limited to, all greenhouse gas emissions from the generation of electricity delivered by utilities and consumed in the State, whether generated in the State or imported into the State.
c. The rules and regulations adopted pursuant to subsection a. of this section shall identify all significant sources of greenhouse gas emissions in the State and shall provide for, but need not be limited to, the following:
(1) monitoring and reporting of existing emissions and changes in emissions over time from the sources identified by the department;
(2) monitoring compliance with the emissions limits established by the department;
(3) developing, implementing and enforcing requirements to achieve the required reductions;
(4) monitoring greenhouse gas emissions in the State;
(5) reporting the levels of those emissions and changes in those emissions levels annually, commencing on January 1, 2008; and
(6) monitoring compliance with the requirements established pursuant to paragraph (3) of this subsection and the progress towards attaining the required reductions determined pursuant to paragraph (2) of this subsection.
d. Pursuant to the rules and regulations adopted pursuant to subsection a. of this section, the department shall require reporting of the greenhouse gas emissions:
(1) associated with fossil fuels used in the State by entities that are manufacturers and distributors of fossil fuels, including, but not limited to, oil refineries, oil storage facilities, and natural gas pipelines;
(2) from any utility generating or delivering electricity consumed in the State, whether the electricity is generated in the State, or generated outside the State and imported into the State, and accounting for transmission line losses; and
(3) from any additional entities that are significant emitters of greenhouse gases, as determined by the department and appropriate to enable the department to monitor compliance with the emissions limits for greenhouse gases established pursuant to this act.
e. The rules and regulations also shall:
(1) distribute the costs and benefits of the program, including emission allowances, in a manner that is –
(a) equitable and maximizes the total benefit to the economy;
(b) does not disproportionately burden low-income and moderate-income households;
(c) provides compliance flexibility where appropriate; and
(d) ensures that entities that have voluntarily reduced their emissions prior to the implementation of the greenhouse gas emissions monitoring and reduction program receive appropriate consideration for emissions reductions achieved;
(2) ensure that the measures implemented to achieve reductions in greenhouse gas emissions do not result in direct or indirect effects or a cumulative impact that increase emissions of toxic air contaminants, identified by the department and the United States Environmental Protection Agency as hazardous air contaminants, or cause or contribute to a violation of a federal or State health-based ambient air quality standard in any community;
(3) evaluate emissions reduction opportunities based upon their cost-effectiveness and additional societal benefits, including, but not necessarily limited to, reductions in other air pollutants, energy security, and protection of the environment and public health;
(4) minimize the administrative burden of implementing and complying with the program;
(5) minimize displacement of emissions outside of the scope of the program; and
(6) where feasible, coordinate with other states and countries to reduce greenhouse gas emissions in a manner that does not conflict with State law and regulations.