ACR148

A Concurrent Resolution concerning legislative review of rules and regulations pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey and invalidating the Department of Environmental Protection rule that repealed New Jersey’s Carbon Dioxide Budget Trading Program.

Whereas, Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Legislature may review any rule or regulation adopted or proposed by an administrative agency to determine if it is consistent with the intent of the Legislature, and invalidate an adopted rule or regulation or prohibit the adoption of a proposed rule or regulation if it finds that the rule or regulation is not consistent with legislative intent; and

Whereas, Upon finding that a rule or regulation, either proposed or adopted, is not consistent with legislative intent, Article V, Section IV, paragraph 6 provides that the Legislature shall transmit its findings in the form of a concurrent resolution to the Governor and the head of the Executive Branch agency which promulgated, or plans to promulgate, the rule or regulation, and the agency shall have 30 days from the time the concurrent resolution is transmitted to amend or withdraw the rule or regulation; and

Whereas, If the agency does not amend or withdraw the existing or proposed rule or regulation, Article V, Section IV, paragraph 6 provides that the Legislature may invalidate or prohibit the adoption of the proposed rule or regulation, following a public hearing held by either House on the invalidation or prohibition, the placement of a transcript of the public hearing on the desks of the members of each House of the Legislature in open meeting followed by the passage of at least 20 calendar days, and a vote of a majority of the authorized membership of each House in favor of a concurrent resolution invalidating or prohibiting the adoption of the rule or regulation; and

Whereas, On August 3, 2015, the Department of Environmental Protection (DEP) adopted and published in the New Jersey Register new rules and regulations repealing existing rules and regulations codified at N.J.A.C.7:27C, N.J.A.C.7:27-22, and N.J.A.C.7:27A and thereby formally eliminated the regulatory scheme governing New Jersey’s participation in a greenhouse gas cap and trade program; and

Whereas, The summary of the adoption attempts to justify the repeal of these regulations by citing a recent Appellate Division decision which determined that the Governor had the authority to withdraw from participation in the Regional Greenhouse Gas Initiative (RGGI) without legislative involvement; and

Whereas, The summary of the adoptiondoes not accurately portray the legislative intent of P.L.2007, c.340 (C.26:2C-45 et seq.), which authorized the DEP to promulgate N.J.A.C.7:27C, and related provisions in N.J.A.C.7:27-22 and N.J.A.C.7:27A, which govern the State’s participation in a greenhouse gas cap and trade program; and

Whereas, At the time N.J.A.C.7:27C and the related provisions in N.J.A.C.7:27-22 and N.J.A.C.7:27A were adopted by the DEP, the particular greenhouse gas cap and trade program in which the State was participating was RGGI; and

Whereas, The legislative intent of P.L.2007, c.340, in part, was to direct the DEP to establish rules and regulations to govern the State’s potential participation in a greenhouse gas cap and trade program; and

Whereas, It was not the legislative intent of P.L.2007, c.340, to authorize the DEP to repeal those rules and regulations, once established, based upon the State no longer actively participating in RGGI, or any other specific greenhouse gas cap and trade program; and

Whereas, Specifically, the repeal of the rules, as adoptedby the DEP in the New Jersey Register on August 3, 2015, would contradict the legislative intent of section 3 of P.L.2007, c.340 (C.26:2C-47). That section of law mandates that the DEP, by rule or regulation, “take any measures necessary” to govern the State’s participation in a greenhouse gas cap and trade program. Section 3 of P.L.2007, c.340, authorized, but did not require, the DEP to exercise this authority in cooperation and coordination with other states or countries that are participating in regional, national, or international carbon dioxide emissions trading programs, necessarily implying that the DEP’s affirmative statutory duty to promulgate such rules and regulations was not contingent upon the State’s participation in a regional, national, or international program such as RGGI. Accordingly, section 3 of P.L.2007, c.340, did not explicitly or implicitly authorize the DEP to repeal these rules and regulations upon the State’s withdrawal from RGGI. Contrary to the position taken in the summary of the adoption, the DEP remains obligated to maintain rules and regulations pursuant to the legislative intent of section 3 of P.L.2007, c.340; and

Whereas, Assembly Concurrent Resolution No. 189 and Senate Concurrent Resolution No. 125 declared that the proposal by the DEP, published for public comment in the New Jersey Register on July 7, 2014, to repeal the rules and regulations codified at N.J.A.C.7:27C, N.J.A.C.7:27-22, and N.J.A.C.7:27A was not consistent with legislative intent; and

Whereas, On December 17, 2015, Senate Concurrent Resolution No. 125 received final approval by the Legislature and was filed with the Secretary of State and transmitted to the Commissioner of Environmental Protection; and

Whereas, Senate Concurrent Resolution No. 125 informed the DEP, pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, that the department shall have 30 days following transmittal of that concurrent resolution to amend or withdraw the new rule or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rule in whole or in part; and

Whereas, The DEP has failed to amend or withdraw, or provide any notification to the Legislature of its intention to amend or withdraw, the rule within 30 days after the transmission of Senate Concurrent Resolution No. 125; and

Whereas, Prior to voting on a concurrent resolution to invalidate an adopted rule or regulation or prohibit the adoption of a proposed rule or regulation, a public hearing shall be held on invalidating or prohibiting the adoption of the proposed rule and the transcript of that hearing shall be placed on the desk of each member of the Senate and each member of the General Assembly; now, therefore,

Be It Resolved by the General Assembly of the State of New Jersey (the Senate concurring):

1. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Legislature invalidates, in whole, the rule adopted by the Department of Environmental Protection and publishedin the New Jersey Register on August 3, 2015, which repealed the existing regulatory scheme concerning the State of New Jersey’s participation in a greenhouse gas cap and trade program.

2. Copies of this concurrent resolution, as filed with the Secretary of State, shall be transmitted by the Clerk of the General Assembly or the Secretary of the Senate to the Governor, the Commissioner of Environmental Protection, and the Office of Administrative Law.

3. This concurrent resolution shall take effect immediately.

STATEMENT

Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, this concurrent resolution invalidates, in whole, the rule adopted by the Department of Environmental Protection and publishedin the New Jersey Register on August 3, 2015, which repealed the existing regulatory scheme concerning the State of New Jersey’s participation in a greenhouse gas cap and trade program.

As required by the Constitution, the Legislature previously informed the Department of Environmental Protection, through Senate Concurrent Resolution No. 125 of 2014, of the Legislature’s finding that this rule is not consistent with legislative intent.