A Decade After Passage of The NJ Global Warming Response Act: From “Toothless” to a “Dead Letter”

The Legislature therefore finds and declares that it is in the public interest to establish a greenhouse gas emissions reduction program to limit the level of Statewide greenhouse gas emissions, and greenhouse gas emissions from electricity generated outside the State but consumed in the State, to the 1990 level or below, of those emissions by the year 2020, and to reduce those emissions to 80% below the 2006 level by the year 2050.

Shortly thereafter, in an October 7, 2007 Sunday Star Ledger Op-Ed, we explained why the law was designed to fail (see: No teeth in ‘tough’ pollution law):

The law — contrary to widespread media coverage — does not legally cap greenhouse gas emissions or mandate emissions reductions on any major pollution sources. As a result, the law’s theoretically “mandatory” goals are unenforceable and therefore a fiction. They amount to the same voluntary approach backed by the Bush administration.

Specifically, the law provides no regulatory authority, funding or staff for the DEP to take the necessary steps to implement and enforce the emission reduction goals. Instead, the DEP is kept on a tight leash and merely directed to develop a set of recommendations on how to meet the goals and to submit that proposed plan to the Legislature by June 2008. In passing the law, the Legislature merely kicked the can down the road, postponing hard choices for well over a year.

Perhaps even worse, any DEP powers to implement the goals of the law were explicitly narrowed. DEP’s role is limited to emissions monitoring and reporting progress in achieving the goals.

Then DEP Commissioner Lisa Jackson and the Corzine administration knowingly supported this “toothless” law and went right along with the castration of DEP and the legislative limits on their regulatory authority.

[*Update: While ignoring the legislative history and how the GWRA was revised during the legislative process (i.e the introduced version of the bill provided authority to DEP to regulate GHG emissions, but that provision was stripped from the bill enacted into law, thereby implying that DEP lacked and establishing legislative intent to limit DEP authority to regulate emissions), the Rutgers Report relies on this boilerplate – a thin reed – from section 42 of the GWRA to argue that the legislature did not limit DEP’s regulatory authority:

Not surprisingly, the Corzine DEP failed to meet even the initial deadline to submit a Report and and make recommendations required by the Act, a failure we were the only ones to note (NEW JERSEY MISSES FIRST GLOBAL WARMING TARGET):

Trenton — The Corzine Administration has failed to meet its first major statutory milestone in implementing the emission reduction goals of the highly touted Global Warming Response Act, according to Public Employees for Environmental Responsibility (PEER). A June 30th legal deadline for producing a plan identifying the legislative and regulatory “measures necessary to reduce greenhouse gas emissions” will not be met until September at the earliest.

The Corzine administration’s first program to attempt to meet the emission reduction goals of the Act – the so called “cap and trade” program called the Regional Greenhouse Gas Initiative (RGGI) – also was designed to fail, an inconvenient truth we noted at the time (NEW JERSEY TO SET CARBON CAPS ABOVE CURRENT EMISSION LEVELS):

Trenton — The Corzine Administration has unveiled a cap-and-trade program to reduce carbon dioxide (CO2) emissions that may do little to combat global warming, according to Public Employees for Environmental Responsibility (PEER). The proposed trading program sets emissions caps above current levels and contains numerous complex offsets and loopholes that undercut its effectiveness.

And again, in another failure, the DEP failed to meet the first deadline under RGGI, another inconvenient truth that we were the only ones to note (NEW JERSEY WILL MISS FIRST GREENHOUSE GAS ALLOWANCES AUCTION):

Trenton — The state of New Jersey will be on the sidelines watching the historic first auction of greenhouse gas pollution allowances under the Regional Greenhouse Gas Initiative or RGGI scheduled for this Thursday, September 25, 2008. New Jersey will also likely miss the next auction, slated for this December, according to Public Employees for Environmental Responsibility (PEER).

And when DEP finally did release the Report and recommendations mandated by the Act – a Report they still stamp as “Draft” – it was a weak effort (NEW JERSEY GREENHOUSE GAS PLAN FULL OF HOLES):

Washington, DC — A new plan for reducing greenhouses gases unveiled last week by the State of New Jersey raises far more questions than it resolves, according to Public Employees for Environmental Responsibility (PEER). Since the report was prepared under the supervision of the designated nominee for the next Administrator of the U.S. Environmental Protection Agency, the plan may foreshadow how the Obama administration addresses the challenge of global warming.

Following the election of Gov. Christie, things got even worse .

The GWR Act shifted from “toothless” to a “dead letter” (CHRISTIE SHREDS NEW JERSEY CLIMATE CHANGE PROGRAMS):

Trenton — New Jersey Governor Chris Christie has taken a wrecking ball to the state’s touted Global Warming Response Act, according to Public Employees for Environmental Responsibility (PEER). In recent weeks, the Christie administration has blocked required reporting from greenhouse gas sources, diverted $300 million in Clean Energy Funds dedicated to energy efficiency and proposed to zero out the state’s Office of Climate Change and Energy.

“New Jersey’s Global Warming Response Act is now a dead letter,” stated New Jersey PEER Director Bill Wolfe, referring to 2007 legislation regarded as the crowning environmental achievement of the Corzine administration. “Whatever progress on climate change we can expect will have to come from Washington, because Trenton has gone AWOL.”

We were the only environmental organization that had the expertise and integrity to tell the inconvenient truth about the Global Warming Response Act (and RGGI) and the Corzine and Christie DEP failures.

Virtually everyone else was cheerleading and misleading the public – or worse – hiding under their desks in fear of losing Foundation or DEP funding.

So, we obviously get very pissed off when NJ Spotlight – a GWRA and RGGI cheerleader – publishes a story today on a Report released by Rutgers that shockingly finds – drumroll, a la Claude Rains – with a blaring headline announcing that:

• NEW JERSEY NOT ON TARGET TO REACH GREENHOUSE GAS GOAL BY 2050 –  New report says state lacks coherent, comprehensive strategy to significantly reduce carbon footprint by midcentury

Wow! No shit, Sherlock.

The Rutgers Report –  provided as a link that I still can’t open – was written by *Ms. Jeanne Herb, the former head of the DEP’s Office of Policy, Planning and Science under the McGreevey and Corzine Administrations.

Ms. Herb oversaw DEP’s failed implementation of the GWRA, so it is a cruel irony that she now has the stones to write a Report about her own failure – and somehow that history is completely ignored by NJ Spotlight, including a decade of hiding under her desk up at Rutgers collecting a nice paycheck and health and pension benefits.

(I wouldn’t be surprised if the Rutgers Report was timed, in addition to what Spotlight describes as providing “a blueprint to the next administration” is also part of an effort to troll for a job with the “next administration”, which is very likely to be Democratic. In this regard, the Rutgers/Herb tactic is part of a much larger scheme where all the “moderate” environmental “leaders” who cowardly kept their powder dry or collaborated for the last 8 years of Christie rollbacks, are all out self promoting: suddenly appearing in the press and doing lavish events (e.g.: Mike Catania, Duke Farms, and the Rutgers climate conference and the NJ Spotlight Delaware River conference are just 2 recent examples of this self promotion).

Meanwhile, those that had the courage and integrity to tell the truth were marginalized, ignored, smeared, blacklisted, and defunded.

At least – after history has validated our criticism and projections – we can look ourselves in the mirror and sleep well at night.

*Full disclosure: I worked with Ms. Herb at DEP from 2002 – 2005.

[Update: Just now able to open the Rutgers Report (Saturday morning). We’ll do a separate post on it – but for now, right up front, get a kick out of this:

This report does not constitute legal advice. Consultation with a NJ attorney is recommended for further evaluation of state authorities and options.

The question of DEP’s legal authority to regulate greenhouse gases is very interesting. Here’s the thumbnail, which we will expand upon in a future post:

1. In 2005, DEP Commissioner Brad Campbell adopted regulations that defined GHG’s as “air contaminants” pursuant to the NJ Air Pollution Control Act. This legal basis anticipated the US Supreme Court’s decision in the Massachusetts case.

However, even Rutgers’ Report noted that these rules did not regulate GHG emissions – just the opposite, contrary to media and public understanding, DEP exempted them from regulation!

Thanks Brad Campbell!

2. Subsequently, in 2007, the Legislature passed the Global Warming Response Act. The introduced version of the GWRA (A3301) included a provision that provided legal authority to DEP to regulate GHG emissions in order to achieve the goals of the Act (i.e. “enforceable limits”, see Section 4.a.(4)) and 5.a(2) (emphasis mine):

That regulatory power was stripped and the final version did not authorize DEP regulation of GHG and strictly limited DEP’s role to monitoring, reporting and recommendations to the Legislature. DEP was prohibited from regulating specific emission sources and setting “enforceable limits” to attain the numeric goals of the GWRA.

3. Subsequently, the legislature passed the RGGI “cap & trade” law – the Global Warming Solutions Fund Act.

This law established the RGGI program, and it strictly limited DEP’s regulatory authority to an emissions allowance program.

It did NOT authorize DEP regulation of GHG emissions to achieve the goals of the GWRA and effectively replaced DEP GHG emissions regulation with a market based “cap & trade” program.

I’m no lawyer, but my understanding of statutory interpretation (which I did learn in a Cornell law school class), suggests that if an administrative agency asserts novel authority to regulate and then the legislature subsequently introduces legislation to provide that authority but then strips that power upon passage of the law, and then acts to replace DEP regulation with a market based alternative, then a strong case can be made that the agency’s assertion of legal authority was not valid and that the legislature decided not to authorize DEP regulation.

By way of comparison, keep in mind that the Obama administration and Democratic Congress’ failed “cap and trade” bill (sponsored by Congressman Markey) explicitly stripped EPA of power to regulate GHG and established an alternative to regulation in the emissions trading program. I previously wrote about that in:

• Another Decade of Doing Diddly On Controlling Carbon Emissions?

DISSONANCE ALERT: That bill also would have revoked EPA authority to regulate GHG under the Clean Air Act (Title VIII, Part C) (see NY Times for implications  “Greenhouse Gases Imperil Health, E.P.A. Announces“. Industry strongly opposes EPA regulation, and the ENGO backers of cap & trade conceded to this demand:

On June 26, 2009, the U.S. House of Representatives passed the Waxman-Markey climate change bill — the American Clean Energy and Security Act (H.R. 2454)– by a narrow vote of 219-212. As voted on by the House, this bill would amend the Clean Air Act to enact a cap-and-trade program (see Part VI.B.3) to reduce emissions of multiple greenhouse gases, including carbon dioxide, methane, nitrous oxide, sulfur hexafluoride, some hydrofluorocarbon emissions, perfluorocarbons, and nitrogen tetrafluoride. Each gas would be given a carbon dioxide equivalent value, and the emissions trading program would apply to electricity-generating and other industrial sources that emit more than 25,000 tons per year of carbon dioxide equivalent. The program would seek a reduction of 17% from 2005 emissions levels by 2020 and an 83% reduction by 2050. Until 2025, electric and natural gas utilities and home heating oil suppliers would receive 55% of the emissions allowances for free, to protect consumers from energy price increases.

In addition, the bill would repeal the EPA’s authority to regulate greenhouse gas emissions through the Clean Air Act’s existing programs. (link – scroll down)

So the effort to strip EPA of authority to regulate GHG, described as a “right wing radical” Legislative proposal, was in the same Democratic sponsored cap/trade bill the environmentalists supported!

The claim that DEP has authority to regulate GHG is certainly no slam dunk –

More to follow.  ~~~~ end update]