Appellate Panel Faults State DEP for Abolishing Rules on Greenhouse Gases

Ruling does not require state to rejoin RGGI, could be opening move in much longer struggle over power-plant pollution

power plant
In another rebuke to the Christie administration from the courts, a three-judge appellate panel yesterday ruled that the state Department of Environmental Protection failed to follow the law when it dropped regulations to control climate-changing pollution from power plants.

The unanimous decision stems, in part, from a 2011 decision by Gov. Chris Christie to pull out of a regional initiative among 10 states to curb greenhouse gas emissions that contribute to global warming.

It is not the first time a court has overturned a unilateral decision by the administration to change state policies. In July 2013, the state Supreme Court ruled that the governor does not have the power to reorganize independent state agencies like the Council on Affordable Housing and Commission on Higher Education.

Other efforts by environmentalists to challenge actions by the administration have proven less successful. They have lost in the courts over decisions by the administration to divert hundreds of million dollars in clean-energy money paid by utility customers to balance the state budget, and over a DEP decision to adopt a rule allowing it waive environmental regulations under certain circumstances.

The governor’s action on climate change has been hotly contested by clean-energy advocates and Democratic lawmakers, the latter of which pushed through two bills to force New Jersey rejoin the program known as the Regional Greenhouse Gas Initiative (RGGI). Christie, who called the program an unnecessary tax on utility customers and ineffective, vetoed both measures.

The Senate Environment and Energy Committee will consider still another new bill tomorrow that seeks to require the state to rejoin the RGGI program. Senate President Steve Sweeney, the sponsor of the bill (S-151), applauded the court’s decision, saying it will allow “public input and legislative oversight into the issue.’’

RGGI proponents argue that dropping out of the problem, which imposes surcharges on power plant pollution aimed at reducing greenhouse gas emissions, jeopardized New Jersey’s aggressive goals to reduce pollution contributing to climate change.

The appellate court decision, however, is mostly procedural.

It does not directly address the issue of the state rejoining RGGI, but focuses on DEP’s dropping regulations it had adopted to reduce greenhouse gas emissions from power plants. The process began as a way to comply with New Jersey’s participation in the RGGI program.

The DEP posted on its website notice that it would no longer implement the rules, after the governor pulled out of the program. Environment New Jersey and the Natural Resources Defense Council challenged the action in court, saying the agency could not do so without going through a new rulemaking procedure and public hearings.

The appeals court agreed. It quoted at length from several bills enacted into law, saying “there can be little doubt’’ that they were intended to enable New Jersey’s participation in RGGI. The court ordered the DEP to initiate a rulemaking process within 60 days in which the agency could repeal or amend the regulations.

Environmental groups hailed the decision. The conceded, however, that it still allows DEP to repeal the regulations and does not require New Jersey to rejoin the RGGI program.

The public process will allow the public to weigh in and gives the Legislature an opportunity to weigh in,’’ said Doug O’Malley, director of Environment New Jersey. If DEP repeals, the rules, he said the Legislature can overturn the decision by a simple majority vote.

“Neither Gov. Christie nor the New Jersey Department of Environmental Protection can simply repeal state laws by fiat,’’ added Susan Kraham, senior staff attorney for the two environmental groups, which challenged the decision.

The DEP failed to respond to an email seeking comment. In arguments before the court, the agency contended that the regulations did not need to be repealed because their only purpose was to implement New Jersey’s participation in RGGI.

In the end, though, this could be just the start of a new and lengthy litigation, some argued.

“This may be beginning of a legal chess game,’’ said Jeff Tittel, director of the New Jersey Sierra Club. “The Legislature could block the rules but that does not get us back into RGGI. This is really the beginning of a battle over climate change.’’

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