ACR156

A Concurrent Resolution concerning legislative review of Department of Environmental Protection rules and regulations pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey.

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 is not consistent with legislative intent, the Legislature may transmit its findings to the Governor and the head of the Executive Branch agency that promulgated, or plans to promulgate, the rule or regulation; and

Whereas, On December 2, 2022, the Department of Environmental Protection (DEP), adopted new rules relating to the Control and Prohibition of Carbon Dioxide Emissions, which, in relevant part, placed stringent emission limits on certain electric generating units; and

Whereas, The adopted rule, codified in the New Jersey Administrative Code at N.J.A.C.7:27F-2.5, states that electric generating units in existence at the time the rule was adopted, with a nameplate capacity equal to or greater than 25 megawatt electrical must meet an emission rate of 1,300 pounds of carbon dioxide per megawatt hour gross energy output on or before June 1 2027, and must meet an emission rate of 1,000 pounds of carbon dioxide per megawatt hour gross energy output on or before June 1, 2035; and

Whereas, The rule impacts electric generating units with valid operating permits and affects generating unit operators’ ability to operate clean and efficient natural gas fired simple cycle combustion turbines peakers, commonly known as “peaker plants” beginning in 2027; and

Whereas, Peaker plants may be able to comply with the 1,300 pound limit when operating at full load, but in doing so these peaker plants would become out of compliance with the requirements set by PJM Interconnection, LLC, the regional grid operator serving New Jersey, to operate at lower loads and shorter periods; and

Whereas, Because the peaker plants are trapped between the DEP rule and the PJM Interconnection, L.L.C’s requirements, some plants may be forced to cease operation; and

Whereas, The forced retirement of peaker plants resulting from the implementation of the DEP’s regulation would ultimately lead to a significant increase of carbon dioxide emissions overall, as compared to the peaker plants’ currently projected retirement date; and

Whereas, By forcing grid operators to dispatch less efficient and dirtier peaker plants in other states, the DEP rule would actually lead to an increase in emissions and in energy supply costs for New Jersey ratepayers; and

Whereas, Notwithstanding, the authority granted to DEP, pursuant to section 8 of P.L.1954, c.212 (C.26:2C-8), to regulate air pollution, the rules codified in the New Jersey Administrative Code at 7:27F-2.5 are arbitrary and capricious as they set carbon dioxide emission limits broadly and arbitrarily without justification as to how these limits protect human health or welfare, or unreasonably interfere with the enjoyment of life or property throughout the State; and

Whereas, It is therefore clear that the DEP has overstepped its authority, in a manner inconsistent with the legislative intent behind section 8 of P.L.1954, c.212 (C.26:2C-8), in proposing the aforementioned carbon dioxide emission rules and regulations, and the Legislature urges the DEP to follow the principles of the Constitution; now, therefore,

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

1. The Legislature declares that the Control and Prohibition of Carbon Dioxide Emissions rules adopted by the Department of Environmental Protection on December 2, 2022, are inconsistent with legislative intent.

2. Copies of this 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 and the Commissioner of Environmental Protection.

3. Pursuant to Article V, Section IV, paragraph 6 of the Constitution of the State of New Jersey, the Department of Environmental Protection shall have 30 days following transmittal of this resolution to amend or withdraw the rule at N.J.A.C.7:27F-2.5, or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the regulations in whole or in part.

STATEMENT

This concurrent resolution embodies the finding of the Legislature that the rules and regulations adopted by the Department of Environmental Protection on December 2, 2022, are not consistent with the intent of the Legislature. The Department of Environmental Protection would have 30 days from the date of transmittal of this resolution to amend or withdraw the rules and regulations or the Legislature may, by passage of another concurrent resolution, exercise its authority under the Constitution to invalidate the rules and regulations in whole or in part.