Archive for the ‘legislation’ Category

NJ needs a saltwater angler license, but should it be free or paid?

Written by PisauroLawAdmin on March 31st, 2010 in Fisheries, legislation | No Comments »

On March 22, 2010 the Assembly voted in favor of A832. This bill would create a saltwater fishing license. That license will require DEP to create and implement a free license for saltwater anglers. NJ needs a saltwater license but it cannot be free.

A license is necessary because of the requirement of the Federal Magnuson-Stevens Fishery Conservation and Management Reauthorization Act passed in 2007. The act created a federal salt water fishery registry. All saltwater anglers would have to register with the Federal government or with their State, if the State had a registry.

The purpose behind the registry is to help provide more accurate data to the Marine Fisheries Council. More accurate data can then be used to determine whether a species is overfished, experiencing overfishing or is being fished in a sustainable manner. This data can then be used to the councils make better decisions on how to manage the fishing stock. We need better information on our fishing stock and we need to manage them better.

Currently, we know of 93 U.S. fish populations that are already overfished or that are currently being fished at unsustainable rates—nearly a third of the 304 fish populations that scientists have assessed (NMFS,2002b). The majority of the already overfished populations are still being fished unsustainably, frustrating rebuilding efforts. The status of another 655 populations, including 120 major stocks (those with landings of at least 200,000 pounds of fish a year) is unknown Pews Ocean Commission, America’s Living Oceans: Charting A Course for Sea Change.

In the last several years NJ has done little to address the findings of the two ocean commissions. Little has been done to learn more about the health or our fisheries. Also, we have done little to overcome the reasons for overfishing. While NJ has the third largest commercial fishery port and has somewhere between 500,000 to 1 million recreational anglers, NJ is not dedicating meaningful resources to managing this vital resource.

One of the problems is that while environmentalist and even Mid-Atlantic Fisheries council believe many fishing stocks are overfished, the fishing industry disputes this claim. They allege that the science relied on by the council and environmentalists are flawed and incomplete. One thing I think that both sides would agree on is that we do not know enough to have a 100% complete picture on the health of our fisheries. We know a lot but we could learn more.

In order to obtain better data, the reauthorized Magnuson-Stevens Fishery Conservation and Management Reauthorization Act created a national fishery registry. All recreational anglers are required to register. 2010 is the first year the national registry has been in place and it is free. Next year the cost of the registry will be $15 to $25. That money will go to the general fund in D.C. and will not necessarily be distributed to help the Fish and Wildlife. It also will not go to the states. One can opt out of the federal system if the State enacts its own registry. Most of the Atlantic coast has enacted a registry. NJ is considering one or more bills. One of the bills passed out of the Assembly Agriculture and Natural Resources Committee last week. That bill would create a free registry. A free registry that would have to be created and administer by DEP. This free registry comes at a time when DEP’s resources are windingly. The current budget proposal would decrease DEP’s budget another 2% one of many cuts it has suffered over the last several years. Those cuts show. For example compare the amount of resources dedicated by North Carolina to marine fisheries with NJ:

New Jersey is dead last of the Atlantic coast states in dollars spent by Government in support of marine fisheries:

This lack of resources has cost NJ and will continue to cost NJ. You cannot have good science without paying for it. You cannot make good management decisions without good information. A paid registry system will fund NJ DEP’s Fish and Wildlife’s marine programs. This funding will allow FWS to do the science that is necessary to insure that our fisheries are healthy and being managed sustainable. A free system will not do that. A free system will actually pull resources away from managing the resource. Both the marine ecosystem and those who use the resource will benefit.

Was 2009 the year for renewables in NJ?

Written by Mike Pisauro on February 10th, 2010 in Green Building, land use, legislation, Renewable Energy, Solar, Uncategorized, Wind | No Comments »

A lot has happen since I wrote Renewables and Land Use Law in 2008. 2009 may be one of the best years for renewable energy in New Jersey. Several laws were passed 2009-2010 in NJ that help move the acceptance and adoption of renewable energy in NJ.

There were two very significant bills. The first modifies NJ land use laws. P.L. 2009 C. 146 adds the definition of inherently beneficial to the land use statutes. Up to now what was inherently beneficial was determined on a case by case basis and only after litigation. The recently enacted law defines inherently beneficial (for the first time) to include “wind, solar or photovoltaic energy facility or structure.” Being inherently beneficial is very useful for land use applicants who are seeking a D variance from their local land use board. D variances are the toughest to get and require the applicant to show that the positive aspects of the project outweigh the negatives. If your proposed project is inherently beneficial you automatically meet the positive requirements of a D variance. What is left is showing that the proposal does not create a substantial detriment to the public good and will not substantially impact the zone plan and township ordinances.

Another law that will have far ranging implications is P.L. 2009 c. 244. This law goes even farther than P.L. 2009 c. 146. In essence this bill requires municipalities to allow small wind turbines within their borders. The bill provides that municipalities “shall not unreasonably limit such limitations or unreasonably hinder the performance of such installations.” Under the bill municipalities cannot enact ordinances that unduly restrict the installation of renewable energy. A small wind energy system or turbine is one which is primarily for onsite consumption of electricity. It is considered an unreasonable for a municipality to:

Prohibit small energy systems in all districts within the municipality
Restricting tower height by applying generic height ordinances that does not make allowance for tower heights.
Requiring setbacks more than 150 percent of the system height.
Setting noise level lower than 55 decibels.
Setting electrical or structural criteria that exceed the applicable UCC standards

This is a very important step forward for wind turbines in NJ. It will not remove all barriers to the installation of wind turbines as a town could require a setback of 150% which many property owners may not meet. Given that the towers for small wind energy systems are rated for hurricane winds, the setbacks really are overly restrictive.

P.L. 2009 c. 35 provides that on industrial property of 20 or more acres solar and wind systems are permitted uses. This would prevent municipalities from requiring variances for the installation of these systems. An applicant would only need a construction permit to install these kinds of systems.

P.L. 2009 c. 33 requires developers of new residential housing to offer as an option to their purchaser’s solar energy systems. This requirement applies developments of 25 units or more. The systems also must be covered under the New Home Warranty and Builder’s Registration Act. Interesting the Legislature set out a section of findings prefacing this law. The State has declared that, “[t]hat the installation of even small scale solar energy systems will combat global warming and reduce the nation’s dependence on foreign energy sources, resulting in a significant environment benefit.” I would suggest a similar finding can be found for wind in the State of NJ.

P.L. 2009 c. 289 revises our electricity generation laws. In particular it increases the amount of electricity that utilities selling power in NJ have to get from solar sources. The law also changes the requirement from a percentage of total electricity generation to absolute numbers. Under this law the State of NJ is requiring that utilities supply either directly or purchase from other generators the following gigawatt hours of electricity generated from solar systems:

2011	306 Gwhrs	2019	1,858 Gwhrs
2012	442 Gwhrs	2020	2,164 Gwhrs
2013	596 Gwhrs	2021	2,518 Gwhrs
2014	772 Gwhrs	2022	2,928 Gwhrs
2015	965 Gwhrs	2023	3,433 Gwhrs
2016	1,150 Gwhrs	2024	3,989 Gwhrs
2017	1,357 Gwhrs	2025	4,160 Gwhrs
2018	1,591 Gwhrs	2026	5,316 Gwhrs

After 2026 the State will still require at least 5,316 Gwhrs of electricity from solar sources. The law allows for the number of Gwhrs to be increased.

The law also permits that the above schedule can be increased by 20% if in the three preceding years there were enough or excess SRECs to meet the requirements and the average price of SRECs in the same three years decreased.

The State changed the system from requiring a percentage of energy to absolute numbers because of the intent in the Energy Master Plan to reduce overall all energy demand. If the RPS requirements remained as a percentage the State would start generating less electricity from renewable energy sources the more successful the EMP was.

The next two are not renewable energy bills but also fairly significant for the energy usage of NJ.

P.L. 2009 c. 106 requires the Department of Community Affairs to develop new enhanced energy codes. These codes are based upon the projected energy costs for the next tens years. The enhanced energy codes shall be designed to increase energy conservation for buildings. In 2006 buildings accounted for 39% of the energy use in the United States. So by enhancing the energy efficiency of new or renovated buildings will go a long way to reducing greenhouse gas emissions and overall energy usage. The new codes are to be set so any increased in cost to meet the new codes will be paid back within seven years from the reduced energy usage.

Lastly, P.L. 2009 c. 33 allows BPU to give grant money to install energy efficiency, renewable energy, reduction in peak demand, and reduction in energy usage for commercial and industrial business with high peak demand. As industry is one of the largest users of energy in NJ some have argued that more money should be spent to help them reduce their energy demands and thus help NJ reduce its consumption of fossil fuels. I am frankly not that convinced that industry should be given this kind of hand out given that many of these energy efficiency, renewable energy systems will pay the company back in a relatively short time frame.

All of these new laws move renewable energy in NJ forward. They make it less expensive to buy, obtain permits and install. The laws improve the market for renewable energy by creating a greater demand. While NJ has moved forward we still have some road to travel. There are several bills being considered for the 2010-2011 legislative session that will again impact NJ’s energy and environmental future. I will look at these bills in a future post.

NJ declares wind and solar energy as inherently beneficial

Written by Mike Pisauro on December 28th, 2009 in land use, legislation, Renewable Energy, Solar, Wind | No Comments »

Last month, the Governor finally signed legislation that decrees that wind turbines and solar panels are inherently beneficial under New Jersey’s land use laws. This is a step forward for wind energy in New Jersey.

Up to now, in most cases if a person or business wanted to install a wind turbine in New Jersey they would have to seek a variance. A variance is usually necessary because the wind turbine does not meet the height restrictions in most towns. Some towns also consider the wind turbine as non-permitted structure. In either event in many instances an applicant for a wind turbine must file for a D variance. D variances are the toughest type to get.

In order to obtain a D variance an applicant must get the approval of 5 of the 7 board members i.e. more than a majority. Also the applicant must prove that the wind turbine is has benefits to society that outweigh the negatives. It also must meet other positive requirements. One would think that proving wind turbines have a positive effect to society and that positive effect outweighs any negative effect. The one thing that can be sure is that when a hearing for a wind turbine is scheduled anybody and everybody will be there to protest with complaints that are in large part invalid (in my humble opinion).

This is where P.L. 2009 C. 146 comes in. This new law defines inherently beneficial under our land use laws. Before this bill what was inherently beneficial was left up to the individual land use boards and ultimately to the courts to decide on a case by case basis. This law defines inherently beneficial as, ‘a use which is universally considered of value to the community because it fundamentally serves the public good and promotes the general welfare. Such uses includes, but is not limited to, a hospital, school, child care center, group home, or a wind, solar or photovoltaic energy facility or structure.” The law in essence removes one small hurdle to the installation of wind energy to NJ. Once a project is considered inherently beneficial it now longer has to prove that the benefits to the public outweigh the negatives. It is assume that the benefits outweigh the negatives.

There was opposition to this bill before it was passed and the League of Municipalities issued a statement on the law arguing that this is taking the power from the municipalities and the courts. In particular the League noted that by including wind and solar energy as inherently beneficial that further legal challenges will be forthcoming.

I agree with the League on this issue, merely declaring wind and solar energy as inherently beneficial does not mean that litigation over the systems will end. I am aware of at least two lawsuits in NJ involving the installation of a wind turbine. I suspect as the green economy grows and the need for clean reliable renewable energy grows more and more businesses and individuals will like to install wind turbines. Those applications will continue to be denied by land use boards for real reasons as well as NIMBY reasons. This will lead to a multitude of lawsuits whose costs will far outstrip the energy benefits to the owner.

While P.L. 2009 C. 146 is a good start, what NJ needs is a laws that prevents townships from prohibiting (either directly or indirectly) the installation of wind turbines in their borders. California has a similar law:

any ordinances regulating small wind energy systems adopted by local agencies have the effect of providing for the installation and use of small wind energy systems and that provisions in these ordinances relating to matters including, but not limited to, parcel size, tower height, noise, notice, and setback requirements do not unreasonably restrict the ability of homeowners, farms, and small businesses to install small wind systems in zones in which they are authorized by local ordinance. It is the policy of the state to promote and encourage the use of small wind energy systems and to limit obstacles to their use.” The statute goes further to provide that, “[t]he implementation of consistent standards to achieve the timely and cost-effective installation of small wind energy systems is not a municipal affair . . . but is instead a matter of statewide concern.” Ca. Gov’t Code §65892.13(a)(5).

If New Jersey is going to meet its terrestrial goals of 200 megawatts of energy from terrestrial wind turbines in the state by 2020 it needs to do more than talk about supporting wind and P.L. 2009 c. 146. We need to do more.

NJ Governor Canditates promote renewable energy, NJ needs more than rhetoric

Written by Mike Pisauro on July 18th, 2009 in land use, legislation, Politics, Renewable Energy | No Comments »

Recently the Republican and the Democratic candidates for NJ governor addressed renewable energy. NJ needs renewable energy. The Country and the World needs the switch to renewable energy. Christie’s website indicates we have one of the strongest renewable energy portfolio standard (RPS), but rank 48^th in the country for renewable energy generation. Why? Well according to the EIA a vast majority of the renewable energy capacity and generation in the country is hydro power. NJ does not have a lot of hydro possibilities. So, if you take out hydro from the calculations, I am not so sure that NJ is doing so badly. For example, NJ is second only to California in solar generation. Granted NJ is a long way down from California but it is still ahead of 48 other states. Take a look at NJ is #2 in Solar and seeking to increase.

After hearing and reading about Chris Christie’s stump for renewable energy, I took at look at his website for more information on how he plans on getting us to the promised land of more renewable energy. With two exceptions the plan was a little sparse. Lots of rhetoric and not a lot of detail. Mr. Christie indicates that one of his methods encourage manufacturers of renewable energy systems to build plants here is to offer a credit of up to 100% corporate business tax or the insurance premium tax. I am not going to delve into the murky depths of whether a 100% tax credit is good or bad. I do wonder how a tax credit encourages the installation of renewable energy in NJ. The plan may or may not encourage companies to locate here, but it does not affect the actually installation of systems in NJ.

Christie also pledges to make solar farms a permitted use under our land use laws. He also pledges to require all landfills to install renewable energy systems on their properties. Lastly, he would allow up to 20% of a preserved farm to be used for solar farms instead of traditional farming products, i.e. vegetables, fruits, etc. There is no mention in his plan on how he will encourage and grow the use of wind energy in the State.

On the other hand, Gov. Corzine’s campaign website has no mention of a renewable energy plan. I presume he will point to the Energy Master Plan released late last year. That plan calls for 1000 megawatts of offshore wind by 2012 (that time frame looks to be way off, please see my post on MMS leases), and an increase in renewable energy generation to 30% by 2020 from the current goals of 22.5%. Those are good goals. But like the Christie plan goals without real concrete steps on how to reach them are not useful. The EMP is short on implementation. As noted above, NJ is not going to have 1000 megawatts of offshore wind by 2012.

Christies plan for solar farms on preserved farmlands is in one shape or form already in the works. S1538 was introduced in the Senate on March 17, 2008. It would allow wind, solar and biomass generation on up to 1% of the farmland including preserved farmland. The bill was passed in the Senate in June 25, 2009 and referred to the Assembly appropriations committee. An Assembly version was heard and reported out of committee, but it has not been considered by the full Assembly yet. With the upcoming elections in the Assembly, it may not be voted on by the full house until after the November elections.

There is also a bill (S1303) that would define wind and solar generation systems as inherently beneficial for land use purposes. This bill has passed out of both houses and is waiting for the Governor’s signature. That bill took almost a year and half to get where it is now. Hopefully the governor signs it into law. This bill is not the full measure that Christie calls for, but is a very small step in the right direction.

Last year the State did enact a law last year that prohibits municipalities from considering the value of renewable energy systems when calculating a properties value. That is a good step in encouraging people and businesses to install renewable energy systems. The law removes a perverse disincentive to renewable energy.

While it is good that both the Democratic and the Republican candidates have made renewable energy a part of their campaign, the State, its citizens and the environment needs more than rhetoric. The State needs to take the goals of the EMP and to implement them in an effective and efficient manner. The State will have to move several pieces of legislation in order to meet the 30% RPS goals some of which are noted above.

One of the most important steps to bringing renewable energy jobs and renewable energy to NJ is the removal of State and local impediments to renewable energy installation even the 22.5% goals by 2021 that are currently in place are unreachable. I have also called for the passage of a state law that would prohibit municipalities from restricting the installation of renewable energy systems. I have published an article discussing the conflicts between renewable energy and land use law. So far no legislator has been willing to introduce that legislation to would truly move the State to a renewable energy future. I do not believe that such legislation should not be earth shattering but would be a change in emphasis. We would be putting teeth in our current land use laws that require:

NJSA 40:55D-2. It is the intent and purpose of this act:

a. To encourage municipal action to guide the appropriate use or development of all lands in this State, in a manner which will promote the public health, safety, morals, and general welfare;

j. To promote the conservation of historic sites and districts, open space, energy resources and valuable natural resources in the State and to prevent urban sprawl and degradation of the environment through improper use of land;

n. To promote utilization of renewable energy resources . . .

Proposed legislation would elevate the goals of the land use laws to requirements for municipalities to meet. Municipal restrictions on renewable energy should be prohibited by state law unless there is a true public health and safety issue. This proposed legislation would be in line with laws already in places like California and Wisconsin. Such legislation would put teeth into the goals of NJ’s land use laws and to coordinate the States strong goals of promoting renewable energy. Hopefully, who ever the next Governor of NJ is, that person keeps their commitment to renewable energy and puts in place measures to really meet those commitments.

Cash for Clunkers Interview

Written by Mike Pisauro on July 7th, 2009 in Federal, legislation | No Comments »

On June 24^th, President Obama signed into law the Supplemental Appropriations Act of 2009. A part of this appropriations act is the “Consumer Assistance to Recycle and Save Act of 2009″ or Cash for Clunkers as it is better known.

Prior to the passage of the act, I gave brief interview with Fox News on behalf of the New Jersey Environmental Lobby (I am their governmental affairs agent). The piece aired after the passage of bill and can be seen here. In a portion of the interview that did not air, I indicated that the House version of the bill was not an environmental bill and was not going to do much for the environment. The clip of me from the piece was in reference to the Senate version of the bill sponsored by Sen. Feinstein and Collins.

The Cash for Clunkers law defines a clunker as any car that gets 18 mpg and under. This definition is ok and not the problem. The real problem lies in the Act’s definition of fuel efficient vehicles. The act defines a fuel efficient car as almost any car that gets at least 22 mpg. This is 3 miles per gallon less than the actual average mpg of our fleet and 5.5 mpg less than what current regulations require. There are two tiers of vouchers. A person can get a $3,500 voucher is their new fuel efficient car is at least 4 mpg greater than what they trade-in (as long as it is at least 22 mpg.) A person can receive a $4,500 voucher if their new fuel efficient car is at least 10 mpg greater than the trade-in. Therefore, a person can trade in their 18 mpg gallon car for a 22 mpg call and get a $3,500 voucher. Also someone could trade in their 12 mpg car for a 22 mile per gallon car and get a $4,500 voucher. In contrast the Senate bill would provide vouchers for vehicles that got at least 25% than the current CAFE standard required.

I have a very hard time calling a car that gets less than the current fleet wide average and even less than what the law requires fuel efficient. I also have a very hard time justifying paying a voucher for such a program on environmental grounds. It would appear that the sponsors of the Senate version agree. While it may or may not be good for the economy and the auto industry, the Cash for Clunkers will not make any major improvements in the environment. As an environmental law, Cash for Clunkers is a clunker.

State, Regional and National focus attention on our Oceans.

Written by Mike Pisauro on June 22nd, 2009 in Clean Water, Federal, legislation, Ocean, Politics | No Comments »

June, as national ocean month, has been a fairly busy one. Two weeks ago the Governors of NY, NJ, DE, MD, and VA met in NY to create the Mid-Atlantic Regional Council on the Oceans. Governor Corzine has just appointed members to the NJ Coastal and Ocean Protection Council. President Obama also has created an inter-agency task force. These are all laudable steps on addressing the dire condition of the Oceans. They are long overdue steps.

In 2003 and 2004 the Pews Ocean Commission and the U.S. Commission on Ocean Policy issued their reports on the health of our oceans. Without going into great detail the cliff notes of these reports were that our oceans are in serious jeopardy and actions had to be taken to reverse course. It has been 5 to 6 years since those reports were issued and at least in NJ the course has not been reversed. There might be debate on whether the continued degradation of our oceans has been slowed, but it clearly has not been reversed. There is still a dead zone stretching along 100 miles of NJ’s coast. Fishing stocks are still declining. Pollution is still running off compromised watersheds further deteriorating the health of our ocean. At the same time there is a push to increase exploration for fossil fuels and to install new renewable energy off our coast.

In order to help NJ address the Pews and U.S. Ocean recommendations, the New Jersey Coastal Ocean Coalition issued a report called: Ocean Protection in New Jersey: A Blueprint for Success. After several years of lobbying, the COC successfully got passed and signed into law the Coastal Ocean Protection Council law. That law took effect on January 13, 2008. In part the law created a council to help the State look at the issues affecting the coast and how best to address the issues. It took over 18 months from the time Governor signed this legislation into law to when he made appointments to the council. It has been 18 months without the council working towards strategies on improving NJ’s regulation of the ocean and coastal environments. It has been six years since the Pews report called for coordinated approaches toward regulating this resource without any meaningful movement to correcting the problem.

When Governor Corzine, entered into the Mid-Atlantic Regional Council on the Oceans he said:
Any threat to these natural resources brings economic consequences that threaten jobs, local economies, and our economic well being. New Jersey is committed to working with our Mid-Atlantic partners to provide adequate safeguards and formulate a shared vision for the region’s future.

This is not a new sentiment, but one that the State asserted when the New Jersey’s Coastal Area Facility Review Act was passed in 1973. I hope that New Jersey and the surrounding states are seriously but addressing the multiple threats to our oceans.

We need a mechanism to coordinate policy with our neighboring states because as we all know the water along our coast does not stay within the jurisdiction of anyone state, but it moves. It is the plan that the Council will help the States examine the issues on the regional level and help the State address them in ways that are not counterproductive to each other.

Even more recently, the President created the Ocean Policy Task Force. One of the goals of the Task Force is to propose a national policy that will protect, maintain and restore the oceans, coastal and Great Lake ecosystems including the implementation of adaptive management; a way to coordinate interagency actions, and how to implement these proposals. The Task Force is also put together a recommendation for coastal and marine spatial planning. If I am reading this Memorandum right the goal for the Task Force is to take the recommendations of the U.S. Commission on Ocean Policy and to figure out how to implement it.

These are very important concepts that I hope are more than catchy phrases to government. If these are no more than words than there will not be an improvement. These words must the announcement of actual action. For NJ, they must implement the Coastal and Ocean Protection Council and allow the council to get to work. For the Mid-Atlantic Regional Council on the Oceans the States must look how many of their regulations both water and land based affect the oceans and how each State can compliment their neighbor’s work. Lastly, the Federal Task for can look at how to assist the States and Mid-Atlantic Regional Council on their missions as well as to provide a uniform framework across multiple agencies on how to cherish and protect this vital resource. We will see if actions do speak louder than words.

Licensed Site Professionals Bill is now law

Written by Mike Pisauro on May 12th, 2009 in Clean Up, legislation | No Comments »

On Thursday, May 8th the Governor signed into law the licensed site professional bill (which I have written several times about). While signing the bill the Governor also issued Executive Order 140 which is a clear indication that there are major problems with the LSP bill.

The EO provides that DEP must increase its auditing, monitoring and review of sites that have impacted groundwater, are to be used for residential, schools, childcare or playgrounds/ball fields. The EO also requires that within the first 24 months DEP must perform at least one case review of documents submitted by every LSP. Also, DEP is required to provide Technical Assistant grants (TAGS) to at least 5 environment groups per year to help deal with the LSPs.

Instead of conditionally vetoing this bill, the Governor issued this E.O. which can be undone by him at any time or by the next Governor. Also, the site remediation program’s proposed budget is significantly cut from last year. So even if there is a good faith desire to meet these requirements, if DEP does not have the resources, how can it comply with the E.O.?

Lastly, Acting Commissioner Moriello, during the budget hearings, has committed to having the temporary licensing and LSP board in place by the summer. So that the private oversight of cleanups can move full steam ahead. The question becomes when does the next Kiddie Kollege, W.R. Grace, etc. happen under this program and what will N.J. do in response?

Indeck's Compact Clause Challenge

Written by Mike Pisauro on April 25th, 2009 in Clean Air, Federal, Global Warming, legislation | No Comments »

As I wrote recently, Indeck Corinth, L.P. has filed suit against the Governor of New York, the NY Department of Environmental Conservation and other agencies, challenging that state’s participation in the Regional Greenhouse Gas Initiative (RGGI). According to the complaint Indeck, a power generating company, alleges the state’s participation in RGGI is illegal for multiple reasons. The most interesting of these claims is that RGGI, itself, is “unconstitutional.” Indeck alleges that RGGI is an interstate compact that, under the Unites States Constitution, requires the consent and approval of Congress. Specifically under Art. 1, §10 Cl. 3 of the Constitution provides:

No State shall, without the Consent of Congress, lay any Duty of Tonnage, keep Troops, or Ships of War in time of Peace, enter into any Agreement or Compact with another State, or with a Foreign Power, or engage in War, unless actually invaded, or in such imminent Danger as will not admit of delay.

Indeck alleges RGGI is an interstate agreement or company but which has not been approved by Congress , is, in fact, illegal. The complaint also provides that:

Congress has the power to regulate emissions and establish interstate emission limits, which it has expressly chosen not to do. RGGI’s supplemental regulations are stricter than Federal regulations promulgated by the United States Environmental Protection Agency and thus, impermissibly encroach on Federal supremacy and interfere with the Federal interest in climate policy and Federal interest in regulating a national and international pollutant.”

One would think that after 200 plus years of having a constitution, one of the earliest portions of that constitution would have a clear and easy answer to this question. As with many things in law, however, there is no easy answer. Having said that, a review of the case law and commentary would seem to suggest that RGGI can operate legally – without obtaining Congress’ approval. In the last 100 years, caselaw dealing with this issue clearly demonstrates that that there are interstate compacts that require congressional approval and there are those that do not. The question seems to hinge on whether the interstate compact could/would have the potential to increase the political power of the states over the federal government.

The leading case in this area of the law is: United States Steel Corp. v. Multistate Tax Commission, 434 U.S. 452 (1978). In Multistate Tax Commission the Court indicated that, if read literally, the Compact clause would prevent any grouping of states from entering into any kind of agreement no matter how trivial and short in duration. The Court did not believe that this was the result the constitutional framers would have desired. The Court then reaffirmed the “test” from an earlier case that limited the need for Congressional approval to “formation of any combination tending to the increase of political power in the States, which may encroach upon or interfere with the just supremacy of the United States.” The Court also looked to see how the compact acted against these four questions:

· did the compact give the states or the multistate agency powers it did not already have?

· did the States delegate their sovereign power to the agency?

· did the state’s have the freedom to reject or accept the model rules and?

· could the States withdraw if they wanted?

In Multistate Tax Commission, the plaintiffs were challenging the creation of a multistate agency by several states to deal with the taxation of businesses with locations in multiple member states. The Court ultimately rejected the challenge by United States Steel under the compact clause. One of the reasons the Court gave was that, by joining together, the States were not doing anything that they could not have done on their own. Therefore, the answer to the first question is “no,” The multistate compact did not give the States power they did not already have.

The situation with RGGI is very similar to Multistate Tax Commission. Each State has the power to regulate air pollution independently of one another (note that GHGs are considered air pollution and can be regulated under the Clean Air Act – but that is a topic for another post.) It is conceivable that each State could independently regulate GHG emissions and create their own auctions for allowances. Each power generator in each state would then have to buy allowances from that state. Multistate generators would have to buy allowances in each state in which they had power plants. The multistate generators would not be able to transfer a NJ allowance to NY if they need to emit additional GHGs in NY. This system would be inefficient and might even cause more leakage than what is already occurring. RGGI is only improving the efficiency of a cap and trade system - it is not increasing the state power or RGGI’s power and, therefore, should pass muster on this requirement.

As to the second question, the Memorandum of Understanding signed by the RGGI explicitly states that RGGI has no regulatory or enforcement authority and that authority is reserved to the States. Therefore, the answer to that question is clearly “no.”The States did not give up any of their sovereign authority to RGGI.

As to the third question, there is nothing in the MOU that explicitly requires a State to adopt all portions of the Model Rule. Also, if I recall correctly, the model rule provides for various options that the State could adopt.

Lastly, in regards to the fourth question, the MOU also provides that any State can withdraw from RGGI with 30 days notice.

Based on the Court’s test RGGI will likely prevail against Indeck’s challenge under the Compact Clause. There may be other constitutional challenges, for example under the Commerce Clause, which may be of concern. Also, proposed Federal law would supplant RGGI for several years. But for now RGGI will be with us.

Governor takes small steps for renewable energy, more needed.

Written by Mike Pisauro on April 4th, 2009 in Global Warming, land use, legislation, Renewable Energy, Solar, Wind | No Comments »

Late last year the State finalized its Energy Master Plan. That plan was several years in the making and was over a decade overdue. The EMP called for increasing NJ’s energy efficiency and the generation of electricity from renewable energy. The State also tied its Global Warming Response plan very tightly with the Energy Master Plan. The sooner NJ puts in place the policies necessary to achieve the twin goals of reducing our generation of energy from dirty power and reducing our global greenhouse gas emissions the better of we will be economically and environmentally. In baby steps towards these goals, the Governor recently signed into three law three bills that will reduce our use of fossil fuels and encourage the development of electricity form renewable energy.

P.L. 2009 c. 33 (A1558/S2265) will help encourage solar energy by making solar photovoltaic panels an option you can choose as when you buy new construction. This new laws requires developer of 25 homes or more to explain to new home buyers the benefits of solar energy, the financial incentives available and to install the panels on the new home if chosen by the buyer. By making solar energy systems just another option a home buyer can choose from as their new home is built, hopefully we will continue to grow NJ’s place as a leader in renewable energy.

P.L. 2009 c. 35 (A2550/S1299) defines solar and wind facilities as a permitted use in industrial zones with 20 or more acres. This bill would help prevent municipalities from excluding solar and wind facilities from industrial zones. In essence towns cannot prohibit renewable energy in these zones by defining them as not a permitted use. They will still be able to discourage these systems by setting up prohibitive setback requirements or height limitations.

P.L. 2009 c. 34 (A2507/S1932) gives BPU the authority/requirement to grant money to companies that was to install cogen facilities. Cogen facilities are systems that use oil/gas/etc. to generate not only electricity but heat as well. Normally, fossil fuels are used to generate heat for a building or electricity but not both. By encouraging the use of cogen the overall use of fossil fuels will decrease.

There is one bill that was considered by both houses of the legislature on March 16th – A3062/S1303. These bills would define wind and solar systems as inherently beneficial. This definition is necessary because many towns require a person who wishes to install a renewable energy system (in particular wind) to apply for a variance. With certain variance applications a person will have to prove that the renewable energy system is “inherently beneficial.” This term has never been defined by the legislature up to now, but we have had to rely on each individual town and the courts to provide the definition on a case by case basis. While this bill is not best solution it is a step in the right direction.

The run of the mill variance application is time consuming, money consuming process without any guarantee that the end result will be favorable. When the variance application is for renewable energy the process because more expensive and more time consuming. Also, it will drive everybody who opposes change to the hearings. These “nimby” people will spout “facts” to oppose the project which have very little relationship to reality. Declaring renewable energy as inherently beneficial, one hurdle is removed from the process.

All of these bills are good first steps to reaching the goals of the energy master plan and the global warming response act. There are several other bills, that will further these goals even more, that have been introduced and are awaiting consideration. I will discuss these bills in a future post.

Perfect Storm for site remediation disaster

Written by Mike Pisauro on March 22nd, 2009 in Clean Up, legislation | 3 Comments »

On March 16^th both Houses of the State Legislature passed the Licensed Site Professionals bill without very very few no votes. The bill will be on the Governor’s desk and it is expected that he will sign it with all haste.

With the LSP Bill, the DEP will have to undertake several things to implement the bill. They will have to implement a temporary licensing program for LSPs; remediation time frames, presumptive remedies, and support the LSP board once it the members are appointed among other activities. Additionally as the LSP does not automatically apply to current sites, the DEP will have to continue to oversee remediations for active sites. Once sites come in under the LSP program, DEP has to review all of the 1000s of documents that are generated from cleanups.

At the same time as the site remediation program’s responsibilities will increase in the short run, its budget will decrease. The Governor’s proposed budget reduces funding to site remediation by 4 million.

Environmentalist already had concern over the many loopholes in the bill and the lack oversight with a fully funded DEP; those concerns are magnified as the site remediation program is underfunded. Remember 50% of the RAO reviewed by Mass DEP required more work or were invalidated. How soon before something slips through the cracks here in NJ.

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