ELR Citation: 44 ELR 20066
No(s). A-4878-11T4 (N.J. Sup. Ct. App. Div. Mar 25, 2014)

A New Jersey appellate court held that the state's Department of Environmental Protection violated the New Jersey APA when it withdrew from the Regional Greenhouse Gas Initiative (RGGI) program. In 2011, the state posted a notice on the Department's website that is was withdrawing from the RGGI program and that power plants would no longer be required to comply with the state's carbon dioxide budget trading program. The trading program regulations were adopted to facilitate the state's participation in RGGI. Environmental groups argued that because the trading program regulations can be implemented independently of RGGI, they cannot be abrogated except through the APA's formal rulemaking procedures. Conversely, the state argued that because implementation of the trading program regulations depends on New Jersey's membership in RGGI, they became prospectively inoperative on the effective date of the state's withdrawal from RGGI and do not need to be repealed. In the end, the court ruled that the state should have followed APA procedures. Although the trading program regulations were intended to implement RGGI, they were sufficiently broadly worded to allow for implementation of a program independent of RGGI. On remand, the Department must initiate the APA process to repeal or amend the regulations within 60 days.