It *Might Be Better If Courts Struck Down NJ’s Toothless Global Warming Response Act

Big Oil And Gas Won’t Sue To Block NJ Law Because They Like It The Way It Is – Toothless

Fossil Energy And Major Polluters Not Impacted By Lame DEP Regulations

For decades, big oil and gas and the fossil energy industry have mounted a series of successful lawsuits to block US EPA regulations to reduce greenhouse gas emissions, arguing that EPA lacked authority under the federal Clean Air Act to regulate GHG emissions.

EPA only adopted climate rules in response to the permission granted by the US Supreme Court in the famous 2006 “Massachusetts v. EPA” case, which ruled that EPA had authority under the Clean Air Act to regulate GHG emissions (upon an EPA “endangerment” finding).

But the same corporate polluters have been silent in New Jersey – they have not politically or legally challenged the NJ Global Warming Response Act or the NJ DEP’s assertion of regulatory jurisdiction over greenhouse gas emissions under the NJ State Air Pollution Control Act back in 2004.

What explains the difference between the ballistic legal and political assaults at the federal EPA level and the lack of any engagement at all in New Jersey, the home of major fossil polluters like refineries, power plants, petrochemical, pharmaceutical, and pipelines?

The reason that the same powerful fossil polluters that politically attack and sue EPA don’t do anything in NJ is because they LIKE the NJ Global Warming Response Act (GWRA) and DEP regulations just they way they are: toothless and weak, respectively.

The GWRA is toothless and unenforceable and the DEP GHG emission regulations have no impact on their emissions and impose little if any compliance costs. DEP has never enforced the Act. There are no DEP permit limits that mandate emission reductions on any greenhouse gas emission source. So, they have no economic or other incentive to sue to block anything.

• Murphy DEP Issues Another Climate Science Report – And Does Nothing

Even Senator Smith knows that (and his bill has gone absolutely nowhere, see:

• Senate Environment Committee Chairman Smith Introduces Legislation To Put Regulatory Teeth In The Global Warming Response Act

They like things just the way they are.

A controversial lawsuit would generate awareness that the GWRA is toothless and give up the game. A NJ Court might strike down DEP regulations or invalidate the GWRA, sending the issue back to the Legislature.

That might prompt environmentalists to pressure the legislature for passage of a law with teeth, like New York State climate activists recently did. For that story, see:

• What A Difference A State (Law) Makes

The issue is framed and teed up perfectly by comments on the DEP’s proposed carbon dioxide (CO2) regulations.

I submitted the following comment (see comment #3 for the entire comment, starting on page 21). This comment was intended to lay the groundwork for one of two things to happen in response:

1) a lawsuit by industry challenging DEP’s authority to regulate GHG emissions under the Global Warming Response Act (GWRA); or

2) an admission by DEP that DEP lacked statutory authority under the GWRA to enforce the goals of the Act in DEP permits.

Here is the core of the comment:

3. COMMENT: As a statutory basis for regulatory authority to limit CO2 emissions, the Department relied primarily, if not exclusively, on the 2007 GWRA, as amended. The rulemaking conflated the New Jersey APCA and the GWRA, which can reasonably be interpreted as asserting the Department’s authority pursuant to the GWRA to mandate emissions reductions to meet the goals of the Act. However, there are strong legal arguments that the GWRA did not authorize the Department to regulate greenhouse gas emissions or establish emission limits for permitted sources. This can be confirmed by reviewing the legislative history, specifically by comparing the introduced version of the bill, which expressly provided authority to the Department to regulate emissions, with the final version enacted into law. The enacted version stripped this authority. The enacted version limited the Department to emissions monitoring and reporting functions.

Unfortunately, my plan will not work for two reasons:

1) the clueless NJ climate activists made absurd and false comments that undermined my arguments and did DEP’s dirty work for them.

The incompetent cheerleading clowns that pose as climate activists don’t understand the difference between a statute, a regulation, and an Executive Order (an EO provides NO LEGAL AUTHORITY OR BASIS FOR RULEMAKING)..

It’s embarrassing. I won’t even repeat their comment here. Go and read it for yourself. It’s comment #2, which DEP conveniently grouped with my comment, to further obfuscate the issue.

2) DEP lied in its response to this comment.

Here’s how DEP dissembled in response to the distinctions between the GWRA and the NJ Air Pollution Control Act I accused them of conflating (important note: I never claimed that DEP lacked authority under the NJ Air Pollution Control Act to regulate GHG emissions. I argued that the GWRA did not provide authority to regulate emissions to meet the emission reduction goals of the GWRA. DEP repeated this erroneous conflation in their response and responded to a straw man comment and argument I never made).

DEP Response:

New Jersey’s APCA gives the Department broad authority to promulgate rules “preventing, controlling and prohibiting air pollution throughout the State.” N.J.S.A. 26:2C-8. ….

The Department’s discussion of the GWRA, Executive Orders, 2019 Energy Master Plan (EMP), and 2050 Report provided the necessary context for the public to better understand the evolution of the State’s overall strategy to address climate change. The APCA authorizes the Department to regulate CO2 as the Department works toward achieving the emission reduction goals set forth in the GWRA, Executive Orders, 2019 EMP, and 2050 Report. Accordingly, the Department both has and cited to the necessary authority to promulgate this rulemaking.