Kicking The Can Down The Road On Climate – For 15 Years!

The Global Warming Response Act Is A Fraud

I’ve written two recent posts to explain how and why the 2007 NJ Global Warming Response Act (GWRA) is a toothless fraud, see:

• Who Stripped DEP Permit Authority From The Global Warming Response Act And Why Did They Do It?

• How The Global Warming Response Act Was Stripped

We didn’t just arrive at this analysis yesterday – we’ve been trying to expose this fraud for 15 years!

Today’s post begins to explore the implications, particularly for DEP’s proposed CO2 rule for certain power plants.

The only reason that NJ corporate climate polluters have not exposed that fraud via litigation and/or political attack is due to the fact that the DEP has never even attempted to enforce the emission reduction goals of the Act.

The business community has gone along with the fraud because the GWRA does not impact them in any way. Instead it actually shields them from real emission reduction requirements.

That passive acceptance and willingness to go along with the GWRA fraud is likely to change as a result of DEP’s proposed CO2 emission rule for a small set of power plants, despite the fact that the DEP proposal is very weak in terms of emissions reductions and applies to only a small subset of GHG emissions and would have a negligible impact on corporate compliance costs and profits.

That acceptance posture will change because DEP is asserting regulatory authority to mandate GHG emissions reductions in permits – and – in theory – DEP could force permitees to actually meet the GWRA goals.

This would fundamentally conflict with the political and legal understandings that allowed the GWRA to pass.

If DEP is now allowed to regulate emissions to force corporate NJ to actually meet what were always understood to be rhetorical and aspirational GWRA reduction goals, there will be significant and costly implications for the status quo. That is totally unacceptable and an existential threat to the profits of powerful corporations in NJ. That’s not what they agreed to.

The last time DEP even suggested that they might do that (2005), DEP was forced to get down on their knees and apologize. DEP was forced to explicitly exempt GHG emission sources from DEP permit requirements and air pollution emissions fees.

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

In contrast to their fundamental opposition to DEP regulatory authority and enforceable emission reduction goals under the GWRA, corporate polluters are willing to accept the Regional Greenhouse Gas Initiative (RGGI) – a market based, not regulatory – program for several reasons:

1) because the RGGI allowance fees are so small they are a minor cost of doing business and can be fully passed through to energy consumers via a surcharge in BPU Orders;

2) because the RGGI “emissions cap” is a fiction – i.e. the cap is not enforceable as a real cap (i.e. strict limit) on total GHG emissions

3) because the RGGI “emission caps” are not enforceable in DEP permits at individual facilities;

4) because the RGGI cap is 30% HIGHER than current GHG emissions and there are millions of tons of surplus “banked credits”, therefore the price of RGGI allowances will remain low for a long time; and

5) because RGGI applies to a tiny subject of GHG emissions sources (in NJ, only about 33 industrial power plants that produce at least 25 MW of energy to the grid), not the entire economy, or all greenhouse gases (like methane), or all major GHG emission sources.

I’ve been trying to get focused attention on this fraud for 15 years. I have failed.

Weeks after the GWRA was signed into law, I wrote an Op-Ed to expose the fraud.

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.

Silly me – I thought there would just be a year or so of delay – not 15!

Given their numerous climate promises, the Murphy DEP is desperately trying to keep this fraud viable – that’s what explains their incredibly weak CO2 emission proposal. DEP is hoping if they just pretend to regulate emissions and not really impact the status quo, that the corporate powers that bill will continue to go along with the fraud.

No way. One of the corporate interests will litigate, if only to nip a strategic regulatory threat in the bud.

Ironically, this fraud will be exposed not by my warnings, but by a lawsuit resulting from DEP’s denial of a petition for rulemaking – and in response to a very weak and narrow DEP CO2 rule proposal.

As I wrote, that lawsuit:

will force the Murphy Attorney General’s Office to file legal briefs that finally and openly admit the fundamental legal flaws that I have long written about with respect to NJ’s climate laws and Gov. Murphy’s Executive Orders

Things happen in strange ways – and after 15 years of a mountain of lies.