New Jersey sues EPA over power plant regulations

 In September, Environmental Protection Agency  Administrator Gina McCarthy testifies on Capitol Hill in Washington. On Friday, New Jersey filed a court challenge to President Obama's Clean Power Plan, which aims to reduce greenhouse gas emissions. (AP Photo/Lauren Victoria Burke)

In September, Environmental Protection Agency Administrator Gina McCarthy testifies on Capitol Hill in Washington. On Friday, New Jersey filed a court challenge to President Obama's Clean Power Plan, which aims to reduce greenhouse gas emissions. (AP Photo/Lauren Victoria Burke)

New Jersey is one of more than two dozen states now suing the federal Environmental Protection Agency over its new Clean Power Plan, which aims to cut carbon pollution from power plants on a state-by-state basis.

In a declaration accompanying the filing, New Jersey DEP commissioner Bob Martin called the state’s emission target “unattainable,” noting that the policy doesn’t credit the state for past efforts in renewable energy. Implementing the rules in the state, he added, would be “extremely complex, time-consuming and costly,” and lead to higher utility bills for homeowners and businesses.

The move follows consistently stated objections to the policy since November of 2014, when it was in draft form. Last month, New Jersey requested an administrative stay from the agency, arguing that the Clean Power Plan was a governmental overreach, and that New Jersey, by already being more “green” than most states, was being held to an unnecessarily higher standard.

New Jersey gets more than half of its electricity from nuclear power.

Environmentalists, however, have not been swayed.

“I think the Christie administration is clearly playing the world’s tiniest violin here,” said Doug O’Malley of Environment New Jersey. In the last few years, he said, New Jersey’s emissions have been rising, not decreasing. And the state has a lot to lose from climate change.

“Of all the states to be suing EPA, New Jersey has 127 miles of coastline that are incredibly vulnerable along the Jersey Sore, and the whole Delaware Bay shore, which is essentially below sea level,” he said. “It takes a lot of chutzpah when you clearly have a sea level rise crisis pending in the coming decades.”

Jeff Tittel, director of the New Jersey Sierra Club, said he suspects the decision to sue was politically motivated.

“The only two states [that have sued] that are not producers of fossil fuels are Wisconsin and New Jersey,” he said. “And both those governors have been trying to seek the Republican nomination.”

New Jersey is the only state in the region to file suit — the nearest are Ohio, West Virginia, and North Carolina — but more than half of the states affected by the policy are legally challenging the regulations.

“That’s a remarkable amount of opposition,” said University of Pennsylvania law professor Cary Coglianese.

The lawsuit was filed in the U.S. Court of Appeals for the District of Columbia Circuit on the first day legal challenges could be registered. Coglianese noted that additional parties could be added until the third week of December.

The first decision for the courts will be whether the objecting states will have to comply with the policy while their cases are considered. Under the regulations, states would have to follow a federal plan for reducing emissions if they refuse to provide one of their own.

“It’s actually rather rare for courts to stay EPA rules while litigation is pending,” said Coglianese, “so this is an uphill battle for them. My advice to New Jersey and any other state would be to start working on this right away.”

The dispute, he added, is likely to take years and to end up before the Supreme Court. It’s difficult to predict an outcome, but he said the court usually defers to the government.

“I would definitely handicap it in favor of EPA,” he said.

But, Coglianese added, things could also change. A Republican president and Congress might amend the Clean Air Act, and do away entirely with the EPA’s ability to regulate carbon emissions.

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