Environmental groups took what might be their last recourse to reinstate New Jersey into a multistate cap-and-trade initiative: suing the governor.
The Natural Resources Defense Council (NRDC) and Environment New Jersey filed a lawsuit Wednesday in a state court against Republican Gov. Chris Christie. The groups say Christie's exit from the Regional Greenhouse Gas Initiative, or RGGI, was unlawful because it didn't give the public any chance to weigh in.
"The governor acted unilaterally ... We think it's illegal for him to act that way," Matt Elliott of Environment New Jersey told InsideClimate News.
If successful, the lawsuit could force the Christie administration to immediately rejoin RGGI—and then to hold public hearings on the future of the state's participation, if it chooses to drop out again.
Larry Ragonese, press director for the New Jersey Department of Environmental Protection (DEP), said the administration did nothing wrong. "Our exit from RGGI was done lawfully," he told InsideClimate News. "We did it in conjunction with the state attorney general's office, and we fully complied with all the legal requirements."
The lawsuit came after earlier strategies by RGGI supporters failed—including flooding the governor's office with 50,000 calls and emails and hosting rallies across the state. The governor has called RGGI "a failure" and an ineffective way to reduce climate-changing emissions.
"For a long time, we simply tried to change the governor's mind," Elliot said.
Some state lawmakers, too, tried—to no avail. Last year Christie vetoed legislation that would have kept New Jersey in the climate initiative. A second, similar bill approved by both houses last month seems likely to suffer the same fate.
Possibly a Political Maneuver, but Illegal?
New Jersey joined RGGI in 2008 under Democratic Gov. Jon Corzine, along with nine other states: Connecticut, Delaware, Maine, Maryland, Massachusetts, New Hampshire, New York, Rhode Island and Vermont.
The states agreed to set a ceiling on carbon dioxide emissions from power plants, and to require facilities to pay for their emissions by buying pollution allowances from states in quarterly auctions.
In May 2011, Christie said he would yank New Jersey from the pact. RGGI does "nothing more than tax electricity, tax our citizens [and] tax our businesses," he said at the time.
The announcement was widely seen as a political maneuver by Christie, a rising star of the Republican party. The GOP's stance in favor of climate skepticism had hardened, and support of cap and trade was viewed as a political liability on the national stage.
A week later, the DEP announced the state would exit RGGI on Dec. 31, 2011. The move required no approval by the State Legislature.
The problem, the lawsuit argues, is that the repeal took effect without public hearings or a comment period, in alleged violatation of the New Jersey Administrative (Procedure Act N.J. Stat. § 52:14B-4), which requires a process of public input.
When adopting, amending or repealing rules, the state must "afford all interested persons reasonable opportunity to submit data, views, or arguments, orally or in writing," the act states.
"We had businesses lined up, public health folks, a wide array of stakeholders who were interested in seeing the program continue—[and] who would testify at public hearings," said Luis Martinez, senior attorney for NRDC.
"Left without an opportunity to comment," Martinez said, the group decided in January to file a lawsuit, which took about five months to prepare.
Patrick Parenteau, a professor at the Vermont Law School and senior counsel to the Environmental and Natural Resources Law Clinic, said the success or failure of the environmentalists' strategy seems to come down to one issue: Does the state's adoption/repeal of RGGI fall under the Administrative Procedures Act?
If so, he noted, then "the legal question simply is, does the [act] require notice and comment for the decision to leave RGGI?"
Legal Precedent and Timing
NRDC says that environmental groups have been known to file these types of suits against governors on occasion.
The most recent example in New Jersey was a March case brought against Christie by the Sierra Club and 26 other groups. The groups claimed the governor abused his authority by approving a rule that allows the DEP to waive environmenal laws to speed access to project permits. The DEP maintains the charges are unwarranted.
This week's RGGI suit could take the state Superior Court until late 2013 to reach a decision, Martinez said.
In the meantime, Elliott of Environment New Jersey said he hopes they can pressure the DEP to allow public vetting before the courts weigh in. "That's the ideal scenario ... We don't want to go to court. We're not a group that sues very often."