Murphy DEP shares same policy on regulating greenhouse gas emissions as Trump EPA
Has NJ AG Grewal Withdrawn the Christie Lawsuit Against The Obama EPA?
During the media and environmental group feeding frenzy to condemn the Trump administration, keep in mind that the Murphy administration shares exactly the same regulatory policy as the Trump EPA.
[Update below]
The Trump EPA today adopted their proposed new rule which repeals and replaces the Obama EPA’s “Clean Power Plan”, see:
Here’s the most significant implication, which I want to discuss in the context of the NJ regulatory arena:
If the Supreme Court ultimately upholds the rule’s approach to the regulation of pollution, it would be difficult or impossible for future presidents to tackle climate change through the Environmental Protection Agency. …
At issue is the meaning of the 1972 Clean Air Act. The Obama administration interpreted that law as giving the Environmental Protection Agency broad authority to set national restrictions on carbon emissions. The Trump administration asserts that the law limits the agency to regulating emissions at the level of individual power plants.
But before I get to how we came to this point and what it means, let me first note that the Trump EPA shares the same fundamental policy with respect to the role of market forces versus regulation as the Murphy DEP does (as we recently criticized in the DEP RGGI rule).
The NY Times story makes this clear, stating the key premise of the Trump EPA:
The measure, which is expected to come into effect within 30 days, assumes that the forces of the market will guide the country to a future of cleaner energy by naturally phasing out coal over time. It imposes only modest requirements on coal plants.
That is virtually identical to the Murphy DEP premises regarding market forces:
- “The CO2 Budget Trading Program is a cap-and-trade program, which is a market-based approach used to control pollution by providing economic incentives for achieving reductions in CO2 emissions from the electric generating sector. (@ page 2)
- “Any new plants constructed that are subject to the RGGI cap will increase demand for the RGGI CO2 allowances. This is likely to result in upward price pressure on all CO2 allowances, resulting in higher costs for fossil fuel generating sources. This is the core of RGGI’s program design. RGGI is not designed to reduce carbon emissions directly, but instead to make fossil fuel generation costlier to operate. (@ page 41).
Now to our topic today and how we got to this point:
On February 9, 2016, the US Supreme Court issued a stay on the Obama Clean Power Plan.
As the NY Times reports:
The Supreme Court suspended the implementation of Mr. Obama’s plan in 2016, pending the resolution of legal challenges from 28 states and hundreds of companies. It has never come into force.
NJ was one of those 28 states that challenged the Obama EPA rules – the Christie Administration joined coal states like West Virginia (read the brief).
As the American Bar Association explained:
Shortly after the EPA announced the Clean Power Plan, a group of states and industry groups, led by West Virginia, the nation’s leading coal producer, filed a lawsuit to halt the implementation of the plan, arguing that it exceeded the EPA’s mandate under the Clean Air Act and violated states’ rights to regulate electrical power.
The scope of EPA authority under challenge is echoed in NJ law and DEP regulation, as I explained in detail in Christie DEP Approves Another Fossil Fueled Power Plant.
Here is that same legal and regulatory issue in NJ:
“State of the art” in pollution control (SOTA) far too narrow
The DEP regulations define “state of the art” in pollution control (SOTA) very narrowly. According to DEP response to public comment:
Comment: … The commenters stated that regulated GHG emissions could be reduced or eliminated by energy efficiency, reduction in energy demand, demand management, and/or renewable energy; none of these “pollution control” methods were considered. …
Response: Pursuant to N.J.A.C. 7:27-22.2, New Jersey Title V Operating Permit Requirements apply to a facility as defined in N.J.A.C 7:27-22.1. At N.J.A.C. 7:27-22.1, a facility consists of “the combination of all structures, buildings, equipment, control apparatus, storage tanks, source operations, and other operations that are located on a single site or on contiguous or adjacent sites and that are under common control of the same person or persons.” Thus, requirements for off-site measures that are not under control of the owners or operators, such as reduction in energy demand or demand management, are beyond the scope of the NJDEP’s authority to review an operating permit application. Also, the NJDEP cannot redefine a project to include renewable energy.
This DEP rule contrasts with a far broader approach under EPA federal rules. Pollution control technology is generally understood and defined by EPA regulations:
“the term “control technology” is defined broadly to be consistent with section 112(d)(2) of the Clean Air Act to include measures, processes, methods, systems or techniques which reduce the volume of, or eliminate emissions of, HAP through process changes, substitution of materials or other modifications; enclose systems or processes to eliminate emissions; collect, capture or treat HAP when released from a process, stack, storage or fugitive emissions point; are design, equipment, work practice, or operational standards; or a combination of the above.
Obviously, the NJ “State of the Art” in pollution control for greenhouse gases MUST include consideration of energy efficiency, demand management, and renewable energy.
That may require legislation or perhaps the next DEP Commissioner can issue regulations.
Let me repeat the key flaw in NJ DEP regulatory policy with respect to application, scope and content of regulation of greenhouse gas emissions.
DEP wrote this, which is far narrower than the basis of the Obama EPA Clean Power Plan and virtually identical to the Trump EPA policy:
a facility consists of “the combination of all structures, buildings, equipment, control apparatus, storage tanks, source operations, and other operations that are located on a single site or on contiguous or adjacent sites and that are under common control of the same person or persons.” Thus, requirements for off-site measures that are not under control of the owners or operators, such as reduction in energy demand or demand management, are beyond the scope of the NJDEP’s authority to review an operating permit application. Also, the NJDEP cannot redefine a project to include renewable energy.
Compare NJ DEP’s narrow interpretation above with the Trump EPA’s interpretation:
In the proposed repeal, EPA asserted that the BSER in the CPP exceeded EPA’s authority because it established the BSER using measures that applied to the power sector as whole, rather than measures that apply at and to, and can be carried out at the level of, individual facilities.
We note that the Murphy administration has not publicly repudiated the Christie administration’s legal attack on the Obama EPA rule.
We ask the legal eagles out there to advise us regarding the status of the 28 State litigation and whether NJ remains a party to the lawsuit or whether the Murphy AG Grewal formally withdrew NJ’s legal challenge.
Regardless of the status of that lawsuit, we must note that the Murphy DEP continues to implement the narrow Christie DEP regulatory interpretation excerpted above regarding DEP’s authority to regulate greenhouse gas emissions.
This failure to revise seriously flawed Christie DEP interpretation of regulations on greenhouse gas emissions is occurring at a time that several new major GHG emission sources are proposed.
The Murphy DEP has not promulgated regulations to reverse the Christie DEP regulatory policy regarding the scope and requirements of the NJ law of “state of the art in pollution control” (SOTA) with respect to emissions of greenhouse gases.
The NJ legislature has not introduced, never mind passed, new law to clarify these issues.
So, during the media and environmental group feeding frenzy to condemn the Trump administration, keep in mind that the Murphy administration shares exactly the same regulatory policy as the Trump EPA.
[Update: A friendly reader suggested I need to keep it simple:
to translate a bit for an interested, but general audience. The dynamics of what has been done, and what needs to be done, can get very wonky.
No doubt, that is excellent advice, but, I lack the writing skills and adequate time to do so, especially on such a complex topic.
Come to think about it, most of my posts are wonky by design and are targeted a a policymaking audience, not a general audience.
But let me take a stab:
The larger debate is about 2 closely related but distinct big ideas:
1) the role of the federal government, versus the states; and
2) whether democratic government’s regulatory mandates (e.g. Speed Limit 55 mph) or the so called “free market” (e.g. you decide to drive safely: prices, voluntary individual consumer choices, corporate profit maximizing decisions, et al) should be used to achieve the deep and rapid reductions of greenhouse gas emissions scientists agree are necessary to avoid climate catastrophe.
Regarding #1, obviously coal, oil and gas producing States are economically and politically NOT going to choose voluntarily to abandon fossil fuels and rapidly transition to renewables. So, federal mandates are necessary.
But Trump and right wing Republicans (including Supreme Court Federalist Society members and some corporate Democrats), seek to dismantle the federal “administrative state” in favor of State’s rights. This would cripple EPA powers to regulate a host of critical GHG emission reduction measures, from energy efficiency standards for appliances and vehicles, to pollution limits on coal power plants.
Regarding #2, this is really about democracy versus corporate power.
Long experience has shown that national problems require national solutions, and that collective systemic structural reforms are far more effective, fair, and efficient (technically and economically) than voluntary individual market based choices (just think of car safety: seat belts were vehemently opposed by the auto industry and reluctantly provided as optional “extras” before they were mandated by the federal government. Similarly, fuel economy was more effective via EPA national fuel economy standards, not individual purchasing decisions. Obviously, the federal government mandates were the better approach, compared to individual consumer choice and/or corporate profit driven decisions.
Similarly the role of government and the functioning of democracy are both under attack by far right ideologues who would prefer that corporations and markets rule.
The large ideas play out in regulatory debates and have direct consequences for the health and wellbeing of everyone – and in this case of climate catastrophe, the future of the world.
The Trump EPA says they can’t legally consider whether your corporate energy producer should or could by required by EPA to reduce their GHG emissions, or reduce energy demand, promote energy efficiency or other “demand management” strategies.
The Obama EPA Clean Power Plan said exactly the opposite.
The Trump EPA rules apply only to minor combustion efficiency technological improvement at an individual power plant.
In contrast, the Obama CPP applied to the whole energy sector (“beyond the fence line”), and involved federal EPA in pushing states to implement broad energy conservation (reduce demand), energy efficiency, and demand management strategies, in addition to the narrow combustion and emissions from an individual power plant.
And, finally, few people realize that the NJ DEP regulations and how they interpret them say the same thing as the Trump EPA, despite all Gov. Murphy’s rhetoric about renewables and a transition to clean energy.
The point I’m trying to make, aside from the blatant hypocrisy, is that we will never be able to achieve Gov. Murphy’s goals under current DEP regulations, which limit the scope of DEP’s power and rely heavily on voluntary individual and corporate market decsions.
So, I tried to make this more digestible. ~~~ end update]
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