In re Regional Greenhouse Gas Initiative (RGGI)

The New Jersey Superior Court, Appellate Division, agreed with Environment New Jersey and the Natural Resources Defense Council that the New Jersey Department of Environmental Protection (NJDEP) should have followed formal rulemaking procedures to repeal or amend regulations implementing the State’s participation in the Regional Greenhouse Gas Initiative (RGGI). After Governor Chris Christie announced in 2011 that the State would withdraw from RGGI’s carbon dioxide cap-and-trade program, NJDEP did not initiate formal repeal procedures for its RGGI regulations but instead posted a notice on its website that power plants would no longer be required to comply with the regulations’ requirements as of January 2012. The appellate court rejected NJDEP’s contention that it was not necessary to repeal the regulations because their only purpose was to implement New Jersey’s participation in RGGI. The court determined that formal rulemaking was required because the regulations “are worded quite broadly and can be read to require action by [NJDEP] absent participation in a regional greenhouse program.”