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Opinion: Fighting Feds on Climate Change Scores Points for Christie with GOP

By joining with coal and oil states in opposing EPA’s new rules, the state DEP could help grab the attention of very generous political donors

Credit: Amanda Brown
R. William Potter

It’s man bites dog time: As NJ Spotlight reported on December 17, the state Department of Environmental Protection is joining forces with leading coal-mining and oil-drilling states -- West Virginia, Texas, Oklahoma, the Dakotas, and the like -- in opposing the U.S. Environmental Protection Agency's proposed regulation of carbon dioxide emissions from electric power plants.

Those regulations, if ultimately promulgated, set state-by-state goals for reducing the carbon intensity of electric generation by an overall national average of 30 percent by 2030. In a letter released on November 26, DEP Commissioner Bob Martin came out swinging against the new rules.

As Jeff Tittel, director of the New Jersey chapter of the Sierra Club, observed, this is the first time the state DEP has not called for even more stringent EPA regulation of air-pollution sources. What gives?

One obvious, if unconfirmed, reason behind the DEP’s about-face is the prospect of Gov. Chris Christie running for the Republican nomination for president in 2016. It’s widely known that oil, coal and other extraction industries are among the most generous -- and demanding -- of Republican campaign donors.

By vigorously opposing these EPA measures, Christie can use the DEP opposition to help cement his political bona fides as an antiregulatory leader when he starts soliciting campaign cash from those with some of the deepest pockets in the Republican Party.

What is most striking about the DEP announcement, besides its tone of barely suppressed sarcasm, is its bulk and thoroughness. The DEP could have released a short letter calling for refinements here and there of the rules, the better to reflect New Jersey's national position as a longtime leader in cleaning up the environment from the bad old days of belching smokestacks.

But Commissioner Martin went far beyond diplomatic bromides. The complexity and extent of the opposition papers hint at something more ambitious: A probable leadership role by New Jersey -- and by extension Christie -- in the litigation that's certain to follow enactment of the EPA regulations, the Obama administration's key initiative for combating global climate change.

The Martin letter castigates the draft regulations as “fundamentally flawed … incomplete, needlessly complex, and impossible to implement.” He goes on to attack the legality of the proposed rule, labeling it as “well beyond EPA's jurisdiction” and seeking EPA “oversight and control of essentially every aspect of energy generation, transmission and dispatch, and every aspect of energy usage.”

This full-throated assault is backed by an 11-page, single spaced legal opinion letter (unsigned) and joined with a 33-page “technical review package” delving into virtually every nook and cranny of the regulations, and finding serious fault with almost everything.

The Martin letter reads like the carefully crafted prelude to a press release announcing the filing of a major lawsuit against the US EPA and the Obama administration to be led by the DEP and Christie, replete with talking points for the campaign trail.

Never mind that public-opinion surveys show consistently strong support among Garden State voters for tougher-than-nails environmental protection, including regulation of greenhouse gas pollutants, such as CO2. Global warming and climate change are clear and present dangers, as demonstrated so tragically with the flooding of much of the Jersey Shore in October 2012.

As a result, the Martin letter -- which aligns this state with the climate-change deniers -- looks like another example of the Christie administration sacrificing the state’s best interest on the altar of presidential ambitions.

The Martin letter does raise a potentially valid issue: “By using 2012 emission rates as the baseline to calculate each state's required CO2 reductions, states that achieved major reductions before 2012 are penalized, while states that have done little or nothing are rewarded with far less stringent goals … Those states that have done the most are expected to continue to do the most, and those states that have done the least are allowed to continue to do the least …”

The EPA's state-by-state emission-reduction targets confirms that the agency assigned 40 states lower 2030 CO2 intensity reduction targets than New Jersey, which is supposed to decrease its emission rate from 932 pounds per megawatt-hour of electric generation in 2012 to 531 pounds perm megawatt-hour by 2030.

In percentage terms, that's a CO2 reduction rate of 43 percentage for New Jersey. Meanwhile, Texas is assigned 39 percent reduction; North Dakota, 11 percent; Utah, 27 percent; West Virginia, 20 percent; Wyoming, 19 percent; and so on.

To be sure, the EPA assigned the energy-extraction states -- Texas, Oklahoma, Kentucky, Louisiana, the Dakotas, among others -- far greater total CO2 emission-reduction tonnage targets than New Jersey.

But it is typically easier to reduce pollution where emission controls have been lax. The greater the pollution the bigger the targets (low-hanging fruit), compared with jurisdictions where controls have been most stringent and most of the easy stuff has already been done.

So, was Martin right to attack the “wildly different” state-by-state reduction ratios as penalizing New Jersey and other first-responder states that have pioneered supportive renewable-energy policies?

The EPA has rolled out a trove of FAQ explanations. For example, “The basic formula for each state’s goal is a rate: CO2 emissions from fossil-fuel-fired power plants and pounds divided by state electricity generation from fossil fuel power plants … Each state’s goal is different as each state has a unique mix of emissions and power sources …This is a fair and equitable approach because the formulas is applied uniformly to all states.”

On its website the NRDC (Natural Resources Defense Council) offers this explanation: “The difference in each state's target is due to the different amounts of carbon pollution reduced when EPA applied the four carbon-pollution reduction tools to each state's energy portfolio.”

These four tools or building blocks for achieving CO2 reduction are (1) make coal plants more efficient (2) use gas-fired plants more often (3) increase reliance on renewables and nuclear and (4) improve end-use energy efficiency.

The states are told they have flexibility to devise their own carbon-reduction plans by using some combination of these four approaches -- or they can come up with new strategies for EPA review and approval.

However New Jersey’s quota was devised, it’s way past time for the state to get serious about reducing its carbon footprint. Regardless of the fate of the EPA regulations, the state’s Global Warming Response Act set a target for reducing CO2 emissions by 80 percent by 2050. And the pending Renewable Energy Transition Act (S-2444) calls for renewable energy to provide 80 percent of the state’s electric power generation, also by 2050.

Bottom line: While the EPA needs to do a better job of explaining how it assigned these numerical goals to each of the 50 states, New Jersey should not focus on attacking the EPA, but on the task of meeting its already-enacted greenhouse gas reduction targets which it can do through enactment of the RETA.

R. William Potter is a partner in the Princeton-based law firm Potter and Dickson. The views expressed are his own and do not necessarily reflect the views of the firm or any client.

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