DEP Releases Global Warming Report Under Cover of Christmas

I had not planned to post anything other than landscape photographs until after the Holidays, but unfortunately DEP forced my hand.

I just got the email – DEP finally released the long overdue Report mandated by the 2007 Global Warming Response Act

(for an analysis of the GWRA, see this Star Ledger Op-Ed: “No Teeth in Tough Pollution law” – for our analysis of the Dec. 2008 draft Report, see: NEW JERSEY GREENHOUSE GAS PLAN FULL OF HOLES – Reliance on Carbon Sequestration, Nuclear and Loose Cap Raises Questions).

Section 6 of the GWRA mandated that:

No later than June 30, 2008, the department, and any other State agencies, as appropriate, shall prepare a report recommending the measures necessary to reduce greenhouse gas emissions to achieve the 2020 limit. The report shall include specific recommendations for legislative and regulatory action that will be necessary to achieve the 2020 limit.

The timing of DEP’s release speaks for itself.

I will touch briefly on just 2 critical issues to illustrate fundamental flaws in NJ and DEP’s program and show why they can not achieve their stated emissions reduction objectives.

1. Lack of Regulatory authority to implement and enforce real emissions reductions

Bear with me as I walk briefly thorough the background on this.

The issue of a mandatory agreement with binding and enforceable emissions reductions and timetables is what caused the recent Copenhagen conference to collapse.

The same issues are present in the US policy debate under the banner of “regulatory mandates” (implemented through EPA, per recent “endangerment finding“) or “market mechanisms” (through cap and trade programs, like the northeastern states’ and NJ RGGI program).

There is much confusion about the issue of regulatory mandates versus market based cap/trade. Supporters of cap/trade mistakenly claim that a cap/trade for GHG can work by pointing to the EPA acid rain cap/trade program which effectively reduced SOx pollution from coal power plants by 50%.

This is a false analogy because the SOx cap/trade program was backed by EPA legal mandates and enforceable State Implementation Plan (SIP) and plant specific air permit limits under the Clean Air Act. There were no “offsets” and “leakage” for SOx and only one discrete source: coal power plants. None of that is true for GHG emissions from coal plants and other sectors and sources. A market approach can not work without enforceable standards and legal mandates.

That controversial and critical policy choice is swept under the rug and buried in the NJ DEP Report released today.

At the federal level, this fundamental issue has gone to the US Supreme Court and is now before Congress.

The global warming bill that passed the House of Representatives would adopt the market based approach. That bill (Waxman-Markey – HR 2454) also would revoke 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.

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)

That issue went before the US Supreme Court in the “Massachusetts v. EPA” case, where the Court decided the question of whether GHGs are “pollutants” under the federal Clean Air Act and therefore whether EPA has authority to regulate GHG emissions. (see below chronology).

NJ participated in this historic decision.

In Feb. 2003, NJ Attorney General Harvey joined Massachusetts and other states in threatening to sue EPA for failure to regulate GHG’s.

Shortly thereafter, in August 2003 then EPA Administrator Christie Whitman’s Chief Counsel, Bob Fabricant, (who had been her counsel in NJ) wrote a legal opinion that reversed the Clinton Administration’s legal position and concluded that EPA did NOT have that authority.

The Supreme Court (in an April 4, 2007 decision) reversed Whitman/Fabricant and said “yes” GHGs are pollutants.

The Supreme Court directed EPA to either issue regulations or explain why they would not regulate.

This decision – not any leadership – is what forced Lisa Jackson’s EPA to make the recent highly touted “endangerment finding”.

So, with that background in mind, I looked to the DEP Report to find how that key issue was addressed. I found it on buried on page 4 of Appendix 3: New Jersey Accomplishments and On-going Efforts with Respect to Greenhouse Gas Legislation, Regulations, Policies and Programs

“CO2 as a Pollutant

In November 2005, New Jersey adopted a regulation under the authority of New Jersey’s Air Pollution Control Act to classify CO2 as an air contaminant. The adoption was published in the New Jersey Register on November 21, 2005. This rule enabled the State to implement its responsibilities under RGGI and to enact additional rules to reduce CO2 emissions from other sectors as necessary. Prior to this, in 2003 New Jersey added CO2 and methane to its emission statement program reporting requirements. The emission statement program requires the annual reporting of emissions of 50 air contaminants from approximately 600 of the largest stationary sources of air pollution in New Jersey.”

DEP has done NOTHING with this regulatory authority for 5 years now (other than to monitor emissions – DEP has set no emission reduction requirements in permits and no emissions fees, like for most other major pollutants).

I argue that this is because the NJ Global Warming Response Act revoked DEP authority – something Lisa Jackson was never held accountable for –  just like the Obama/Jackson supported Waxman-Markey bill seeks to do to EPA at the federal level. This would be a disastrous mistake.

For the wonks out there, here is the detailed chronology:

(1) Jonathan Cannon’s 1998 Memorandum for the Clinton Administration’s EPA, arguing that the EPA did have authority under the Clean Air Act to regulate carbon dioxide as an air pollution. (Cannon was recently forced to withdraw as Obama EPA Deputy EPA Administrator) Download PDF

(2) The International Center for Technology Assessment’s (ICTA’s) 1999 Petition to the EPA, requesting that the EPA regulate carbon dioxide. Download PDF

(3) The National Academy of Science’s controversial 2001 report on climate change, on which both the EPA and the D.C. Circuit relied. Download PDF

(4) Several States’ February 2003 Intent to Sue Letter to the EPA, threatening litigation over carbon dioxide. Download PDF

(5) Robert Fabricant’s August 2003 Memorandum for the Bush Administration’s EPA, denying that the EPA has authority to regulate carbon dioxide under the Clean Air Act. Download PDF

(6) California’s August 2003 Petition for Review of the Robert Fabricant memorandum. Download PDF

(7) The EPA’s September 2003 denial of ICTA’s petition. Download PDF

(8) An edited version of the D.C. Circuit’s 2005 decision in Massachusetts v. EPA. Download PDF

(9) The D.C. Circuit’s denial of rehearing in Massachusetts v. EPA. Download PDF

(10) The petition for certiorari. Download PDF

2. Claimed RGGI Reductions

The DEP RGGI emission reduction numbers are smoke and mirrors – I will do a thorough review, but based on my preliminary review:

1. Per Appendix A, the Report projects a RGGI reduction by 2020 of 8.5 MMT CO2 equivalents (Table A1.1). Appendix 1: Greenhouse Gas Emission Reductions Expected by 2020 from the Core Recommendations

2. The 2007 in state electric emissions from RGGI sources increased from 19.8 MMT in 2005 to 22.7 MMT in 2007. (Table 1 Inventory – hit link to find)

3. The RGGI agreement and NJ State RGGI law allocated 22.9 MT to NJ .

This key fact curiously is not mentioned. Worse, the Report misleadingly claims that RGGI reductions are regional and difficult to allocate to a state. Both omission and misleading claim are evidence that DEP is seeking to suppress critical NJ RGGI facts.

4. The RGGI agreement provides for a 10% reduction between 2014-2018 –

I am not absolutely sure what the baseline for the 10% is but it could be from 19.8 MMT – 22.7 MMT (or slightly more) – so that 10% reduction  under RGGI comes to less than 3 MMT.

So where is NJ going to get 8.5 MMT from RGGI?

That is not possible to understand from this Report – which to me shows it as a sham.

And the Christmas eve release speaks for itself.