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Murphy DEP CO2 Emissions Proposal Ignores Legislative and DEP Regulatory History

DEP CO2 Proposal Is Fatally Flawed Legally

Will Wise Men Avoid Upcoming Legal Train Wreck?

While its hard to admit because the man fired me, one of the few good things Gov. Whitman’s DEP Commissioner Bob Shinn did was to support DEP’s greenhouse gas emissions monitoring, inventory, and science program back in 1994-95. My good friend Mike Aucott was a pioneer in that effort.

At the time, there was no intention by Shinn or Whitman to actually regulate these GHG emissions, but it was important for DEP to begin to address the burgeoning climate emergency, which was obvious 30 years ago to anyone paying attention.

After 8 long years of “Open For Business” Whitman/Shinn DEP inaction on the climate front, in 2002 Gov. McGreevey assumed office and his DEP Commissioner Brad Campbell swiftly took regulatory action on climate. (full disclosure: I worked for Campbell, but not on climate).

In 2004, DEP proposed rules that defined GHG as “air contaminants” (i.e. pollutants) that were regulated under NJ’s State Air Pollutant Control Act. The proposal was adopted by DEP in 2005. That DEP regulatory move anticipated the groundbreaking US Supreme Court decision in the 2007 Massachusetts case, which basically found that GHG were pollutants regulated by EPA under the federal Clean Air Act.

But NJ’s major powerful corporate polluters – PSE&G, the Chemistry Council, NJ Petroleum Council, NJ BIA, Chamber of Commerce, Big Pharma – fully understood the implications of Campbell DEP’s regulatory move. And they used that power to force Campbell to stand down and back off any DEP regulation of their GHG emissions, including paying costly DEP air pollution emission fees (DEP’s current air pollution emission fees are $130 per ton).

Specifically, Campbell’s DEP was forced to explicitly exempt GHG emissions from DEP air permit emissions and fee requirements. The power of corporate polluters humiliated Campbell.

Here it is: (DEP, from the NJ Register)

It was not the Department’s intent to establish CO2 emissions permitting and regulatory requirements through the proposed amendments. The Department has modified the rules on adoption to except CO2 from existing air pollution regulatory and reporting requirements. ~~~ NJ DEP, 2005

Subsequently, just 2 years later, those same powerful corporate polluters made sure that DEP was not authorized to regulate GHG emissions by the 2007 Global Warming Response Act.

Current Murphy DEP Commissioner LaTourette has ignored all this history and it shows in DEP’s proposed CO2 emission rule for certain power plants that generate power for the grid.

Here’s how DEP now glosses over and obfuscates that whole political, legal and regulatory history:

LaTourette has a big ego – he likes to pretend his DEP was the “first” to issue a climate science Report and the first to regulate GHG emissions. But he stokes his ego and ignores history at our peril.

Clearly, DEP experts are fully aware of this history – and that shows by the fact that the DEP CO2 proposal explicitly revokes the 2005 Campbell DEP exemptions from DEP permit and fee authority. (ha! I wonder if by revoking this 2005 exemption, DEP has indirectly imposed $130 per ton emission fees? If so, DEP failed to discuss that in the Economic Impact section of the proposal).

[Even more revealing is the fact that the DEP proposal seeks to revoke the 2005 permit and emissions fee exemptions by stealth! DEP does this with absolutely no discussion in the background text of the proposal. Instead, they do it by bracketing (repealing) the text of the 2005 exemptions – see DEP proposal on page 109. – and this vague statement on page 9:

But, while DEP implicitly recognizes this regulatory history by revoking the 2005 exemptions, they completely fail to address the legislative history or understand WHY DEP was forced to issue those 2005 exemptions and WHY their regulatory authority was limited by the 2007 Global Warming Response Act.

That failure to recognize the legislative history is exposed by the fact that the DEP CO2 emissions proposal is based on the Global Warming Response Act, instead of the legal authority DEP asserted in 2005 under the NJ Air Pollution Control Act.

This is a fatal legal flaw that is certain to be exploited by the corporate lawyers representing NJ polluters.

I wrote the email below to DEP Commissioner LaTourette, with a copy to GWRA sponsor Senator Bob Smith. Will these wise men avoid the obvious upcoming legal train wreck?

To: shawn.latourette@dep.nj.gov

Cc: senbsmith <SenBSmith@njleg.org>

Date: 01/28/2022 11:52 AM

Subject: Legal Flaw in CO2 proposal

Dear Commissioner LaTourette:

I write to advise you of an inadvertent but fatal legal flaw in DEP’s proposed CO2 emissions rule for EGU’s.

As a statutory basis for regulatory authority to limit CO2 emissions, the Department relied primarily – if not exclusively – on the 2007 Global Warming Response Act, as amended.

However, as you may know, there are strong legal arguments that the GWRA intentionally did not authorize the DEP to regulate GHG emissions or establish emission limits for permitted sources.

This can be confirmed by reviewing the legislative history, specifically by comparing the introduced version of the bill – which expressly provided authority to DEP to regulate emissions – with the final version enacted into law. The enacted version stripped this authority. The enacted version limited DEP to emissions monitoring and reporting functions. I strongly urge you to review that legislative history and intent argument.

There are two conflicting explanations for why the legislature stripped this authority and Gov. Corzine signed the bill into law:

1) some argue that it was stripped because the DEP already had pre-existing authority pursuant to the NJ Air Pollution Control Act (NJ APCA). This view is supported by the fact that in 2004/2005, DEP asserted that authority and proposed and adopted regulations that defined GHG as a “air contaminants” (pollutants) regulated pursuant to the NJ APCA. The GWRA also states that it dos not limit other DEP authority. This view is also supported by the US Supreme Court’s Massachusetts decision, issued just months before passage of the NJ GWRA, which essentially found that GHG were regulated pollutants under the federal Clean Air Act.

2) but other’s argue that it was stripped intentionally to prevent DEP from using regulatory authority to adopt emission standards and regulate GHJG emissions via permits to individual facilities under the NJ APCA and delegated federal CAA. This view is supported by the passage of the RGGI program, which relies on market based trading, not point source permitting, to control GHG emissions from certain point sources (EGU’s). This view also is supported by DEP’s 2005 rulemaking, which explicitly exempted point sources from DEP air permit and emission fee requirements.

While the GWRA amends and has been codified in the NJ APCA, there are major distinctions in DEP’a authority to regulate activities, emissions, and the factors DEP may consider in any regulatory scheme.

I am not a lawyer, but was involved during the legislative debate on the bill. I see credible arguments supporting both views.

Regardless, this is not a legal risk worth taking, especially in the current legal and political climate, where litigation risk is virtually 100%.

Accordingly, in order to avoid this legal risk, I strongly urge you to revoke and re-propose the rule.

The new proposal should be based on the DEP’s regulatory authority under the NJ APCA and rely on the GWRA only for policy guidance – conceptually like the relationship between a local Master Plan and zoning ordinance under the NJ MLUL.

Of course, nothing here provides any support for the scope of the DEP proposal (sources and pollutants), the actual emission rates proposed, and the GHG emissions reductions and timing that would result from the proposal.

DEP can and must do much better than that, even to conform to Gov. Murphy.s Executive Order (50X30).

I am available to provide additional support at your request, but the arguments I make are all in the text of the legislation, public record, and legislative history.

I am copying Senator Smith, a primary bill sponsor, to urge his guidance.

Bill Wolfe