N.J. Sues to Block EPA’s Coal-Friendly

“Affordable Clean Energy” Rule

TRENTON – Attorney General Gurbir S. Grewal today joined a multi-state Petition for Review challenging the U.S. Environmental Protection Agency’s so-called Affordable Clean Energy (ACE) rule, which relaxes federal greenhouse gas emission standards and other important regulatory controls for existing coal-fired power plants.

Filed today in the U.S. Court of Appeals for the D.C. Circuit, the petition challenges the ACE rule as unlawful and asserts that it must be vacated. The ACE Rule would enable existing coal-fired power plants to operate indefinitely into the future without requiring them to implement key technology to reduce greenhouse gas emissions, including carbon dioxide (CO2).

“Just like its name says, the Environmental Protection Agency has a clear job: to protect our environment,” said Attorney General Grewal. “But EPA’s latest rule does nothing of the kind. At a time when experts call on us to combat the threat of climate change, Washington refuses to hold the biggest polluters accountable. Not only is that bad policy, but it’s wrong on the law. EPA is required to make sure power plants are using the best technology to reduce their emissions. This rule instead gives power plants and the coal industry a blank check to keep on putting our environment and health at risk. That’s why I’m proud to join AGs from across the country in fighting to stop it.”

“When the federal government tries to drag us backward, New Jersey and other states must step forward,” said New Jersey Department of Environmental Protection (DEP) Commissioner Catherine R. McCabe. “We are pleased to join other states in voicing our opposition to the ACE rule, defending the progress that we have made as a state and keeping us on a path toward the Governor’s goal of 100 percent clean energy by 2050.”

“To the detriment of all, the EPA has implemented a new rule that ignores the impact of climate change and the goal of providing a cleaner and healthier environment – and I support the effort to reverse this decision,” said Joseph L. Fiordaliso, President of the New Jersey Board of Public Utilities (BPU). “New Jersey has taken dramatic steps to address climate change and to achieve Governor Murphy’s goal of 100 percent clean energy by 2050. Just a few weeks ago the Board granted the largest offshore wind solicitation in the nation and we have recently released a draft Energy Master Plan that will provide a roadmap to achieving 100% clean energy by 2050. Those who dismiss climate change as an ongoing issue are ignoring the grim reality we all face.”

In 2015, the Obama Administration adopted the Clean Power Plan, which placed new and stringent limits on greenhouse gas emissions from power plants. Although the prior Administration challenged that rule in court, inWest Virginia v. EPA, Attorney General Grewal withdrew from that challenge less than two weeks after taking office.

In 2018, EPA announced that it would replace the Clean Power Plan with the ACE Rule, which cut back on the prior limits on greenhouse gas emissions from power plants.

In response, in October 2018, Attorney General Grewal, DEP Commissioner McCabe, and BPU President Fiordaliso jointly wrote to EPA to oppose the proposed ACE rule and to urge that EPA implement the Clean Power Plan instead.

As the letter explained, the new ACE rule would let existing coal plants off the hook for their emissions by requiring insignificant improvements to plant efficiency. As the letter notes, the Rule “would allow power plants, one of the largest sources of greenhouse gas emissions, to increase their carbon dioxide emissions at a time when the scientific consensus is clear: we must reduce greenhouse gas emissions now if we are to avoid the most catastrophic of climate change impacts for our future generations.”

The letter went on to describe the consequences of climate change in New Jersey. The letter noted that its effects are already being felt in the state, as illustrated by “hotter weather and more extreme weather events,” an increase in precipitation, and rising sea levels. One example is Superstorm Sandy, which wreaked havoc in the state in 2012 as storm surge reached 9-10 feet above normal in some coastal areas, endangering many of the two million residents who live within New Jersey’s 239 coastal communities.

The letter also highlighted the legal flaws in the ACE Rule. The Clean Air Act requires EPA to impose new emissions standards on power plants based on “the best system of emission reduction.” But the ACE Rule does not represent the best system of emission reduction, because it specifically allows for greater greenhouse gas emissions from power plants than was allowed under the Clean Power Plan.

However, on June 19, 2019, EPA finalized the ACE rule, reversing the agency’s prior approach to reducing greenhouse gas emissions.

As a result, Attorney General Grewal today joined litigation in the D.C. Circuit with Attorneys General across the country. In addition to New Jersey, the following joined today’s petition for review: New York, California, Colorado, Connecticut, Delaware, Hawaii, Illinois, Maine, Maryland, Massachusetts, Michigan, Minnesota, New Mexico, North Carolina, Oregon, Pennsylvania, Rhode Island, Vermont, Virginia, Washington, Wisconsin, and the District of Columbia.

Participation in today’s lawsuit is the latest action by Attorney General Grewal, DEP, and BPU to safeguard New Jersey’s environment and combat climate change. Among other things, Attorney General Grewal:

• Withdrew from West Virginia v. EPA, in which the prior Administration sought to block the Clean Power Plan and its limits on emissions from power plants.

• Filed an ongoing lawsuit challenging EPA’s decision to loosen the fuel efficiency standards that restrict greenhouse gas emissions from vehicles.

• Filed an ongoing lawsuit challenging EPA’s decision to lessen the penalties for violating those federal fuel efficiency standards.

• Challenged the Department of the Interior’s decision to let companies engage in seismic testing in the Atlantic despite harm to marine mammals, the first step towards offshore drilling – and got DOI to table its offshore drilling plans.

• Sued EPA over its decision to suspend a rule limiting the production of super-polluting trucks known as “gliders” – another suit that led EPA to back down.