Court Strikes Down EPA’s Interpretation Of The “best system of emission reduction”
NJ DEP Shares The Same Interpretation As The Supreme Court
DEP Claims “beyond the scope of the NJDEP’s authority”
The US Supreme Court, in what is widely condemned as a radical pro-corporate polluter opinion, struck down the Obama EPA’s Clean Power Plan.
The Court’s decision focused on and rejected how EPA interpreted the federal Clean Air Act’s mandate that EPA power plant regulations must be based on the “best system of emission reduction”.
The crux of the decision turned on how EPA broadly interpreted that phrase to mean that the “best system of emission reduction” included actions beyond individual power plant pollution controls and included off site actions, like “generation shifting” to lower CO2 emitting fuel sources (“fuel switching” to natural gas) or energy efficiency and renewable power or pollutant trading to address broader grid scale emissions.
Here’s how the Court’s Syllabus describes that EPA interpretation:
involved what EPA called “generation shifting” at the grid level—i.e., a shift in electricity production from higher-emitting to lower-emitting producers. Building block two was a shift in generation from existing coal- fired power plants, which would make less power, to natural-gas-fired plants, which would make more. This would reduce carbon dioxide emissions because natural gas plants produce less carbon dioxide per unit of electricity generated than coal plants. Building block three worked like building block two, except that the shift was from both coal and gas plants to renewables, mostly wind and solar. The Agency explained that, to implement the needed shift in generation to cleaner sources, an operator could reduce the regulated plant’s own production of electricity, build or invest in a new or existing natural gas plant, wind farm, or solar installation, or purchase emission allowances or credits as part of a cap-and-trade regime. Taking any of these steps would implement a sector-wide shift in electricity production from coal to natural gas and renewables.
The Court ruled that Congress had not authorized EPA to regulate beyond the individual pollution source or to impose more than traditional source specific technology based pollution controls. The Court found that:
there are no particular controls a coal plant operator can install and operate to attain the emissions limits established by the Clean Power Plan. Indeed, the Agency nodded to the novelty of its approach when it explained that it was pursuing a “broader, forward-thinking approach to the design” of Section 111 regulations that would “improve the overall power system,” rather than the emissions performance of individual sources, by forcing a shift throughout the power grid from one type of energy source to another.
Which takes us to the NJ DEP’s interpretation of technology based air pollution controls under an analogous technology based standard in NJ’s 1954 State Air Pollution Control Act (much older than the 1970 Clean Air Act Section 111 provision the US Supreme Court applied in its new “Major Questions Doctrine” analysis), a standard that is legally known as the “advances in the art of pollution control” – commonly referred to as “State of the Art” (SOTA).
Briefly, the NJ DEP takes the exact same narrow approach as the radical US Supreme Court.
I wrote about that DEP regulatory interpretation in this post:
Here it is, based on DEP’s own regulatory findings expressed in a response to public comment document on an air permit for the proposed BL England power plant (DEP text from permit is in italics):
“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, “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.
So, there it is. DEP rejects the SOTA GHG policy I find “obvious”.
Just like the US Supreme Court says EPA can not regulate the energy mix on the grid, DEP claims they can only regulate a “facility”. Let’s repeat DEP’s own words here:
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
NJ DEP is as backward as the right wingers on the US Supreme Court who seek to dismantle the administrative state.