COURT ORDER DO-OVER ON PINELANDS PIPELINE APPROVAL

A lot of attention has been focused on the Dakota Access Pipeline, which would carry crude oil across four western states, damaging the environment and disturbing Native American historical and cultural sites.

Similar battles over proposed pipelines are taking place right here in New Jersey and recent developments will at least delay two of those projects and hopefully allow for more public input on their impact.

On November 7, a state appellate court threw out a key approval for a proposed 21-mile natural gas pipeline that would cut through the New Jersey Pinelands and sent the issue back for reconsideration.

The Pinelands, a heavily forested area in the southern half of the state, is a national reserve, the first in the U.S., created by Congress in 1978. Two of its rivers , the Maurice and Egg Harbor, are National Wild and Scenic Rivers under federal law and the United Nations has designated the Pinelands an International Biosphere Reserve.

The Pinelands is the largest body of open space on the Mid-Atlantic seaboard between Richmond and Boston. Its1.1 million acres span seven counties and 56 municipalities and comprise 22 percent of the state’s land area.

Also referred to as the Pine Barrens, the region’s unique ecology and history were vividly captured in a 1968 nonfiction book of that name by John McPhee.

New Jersey Appleseed represented the New Jersey Sierra Club and Environment New Jersey, which joined with the Pinelands Preservation Alliance and three former New Jersey governors–amici curiae Brendan Byrne, James Florio and Christine Todd Whitman– to challenge the pipeline.

The company seeking to build the pipeline, South Jersey Gas Co., needs approval from the New Jersey Board of Public Utilities (BPU), which will only grant it if it gets the go-ahead from the Pinelands Commission, the independent state agency that manages the reserve.

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A Complicated Approvals Process

Approval depends on a determination by the Commission that the project is consistent with the minimum standards of the Comprehensive Management Plan or CMP – the set of rules that guide land-use, development and natural resource protection programs within the Pinelands National Reserve.

Under the CMP, public infrastructure running through Pinelands Forest must be “intended to primarily serve only the needs of the Pinelands.” The idea is that, otherwise, the addition of infrastructure will encourage more development.

The pipeline is meant to power the BL England Power plant at Beesley’s Point in Upper Township, Cape May County., which generates electricity for more than 28,000 customers living within the Pinelands region but also almost 112,000 others who live outside of it.

South Jersey first submitted the pipeline proposal to the Commission in 2012 and in 2013, Commission staff decided it did not comply with the CMP because it would serve those outside-the-Pinelands customers .

Meanwhile, South Jersey’s application was moving forward with the BPU, which found the pipeline met statutory siting criteria, declared that state and local land use laws did not apply to the project and started to hold public hearings.

Staff for the Commission and BPU negotiated an agreement allowing the pipeline to be built despite the Commission staff’s determination of noncompliance with the CMP. They relied on a state law allowing the Commission to enter into an agreement with any federal, state, or local government, that allows “such agency” to carry out “specified development activities that may not be fully consistent with” minimum standards for land use and intensity) and (management programs and minimum standards for development and land use in the Pinelands).

The Pinelands Preservation Alliance and the Sierra Club and others got to voice their objections at a December 2013 Commission hearing. Four former New Jersey governors—the three amici plus Tom Kean–filed written objections contending that the pipeline would compromise the integrity of the CMP.

On January 3, 2014, Nancy Wittenberg, the Commission’s executive director recommended that the Commission approve the agreement but when the 15-member body met on January 10, 2014, it split 7-to-7 on a resolution that would have authorized Wittenberg to execute the agreement with the BPU, with one member recusing.

With eight votes needed, the resolution failed and South Jersey appealed.

While that appeal was pending, in May 2015, South Jersey submitted a revised plan.

Subsequently, Commission staff deemed the revised application complete and issued a Certificate of Filing, which stated that the proposed pipeline was consistent with the permitted use standards of the CMP because it is designed to transport gas to an existing facility located in the Pinelands.

Following additional public hearings, Wittenberg wrote to the BPU on December 14, 2015, that the commission’s determination of consistency with the CMP was unchanged.

Two days later, citing the Commission’s finding of CMP consistency, the BPU granted South Jersey’s petition to exempt the project from the land use laws.

In the November 7 court opinion, which was precedential, a three-judge panel held that the BPU erred in relying on Wittenberg’s determination as a basis for viewing the project as consistent with the CMP because Wittenberg was not authorized to make a final determination on that issue. That has to be done by the Commission

The court instructed the Commission to review Wittenberg’s determination in light of the objections raised in the appeal. The judges left it to the Commission to decide whether to base its review on the factual record developed before the Board or allow the presentation of additional evidence, and also whether to refer the matter for review by an administrative law judge.

The court did not reverse the BPU outright but it required that it amend its order exempting the pipeline from land use laws to state that approval is conditioned on a final decision by the Commission on consistency with the CMP.

New Jersey Sierra Club Executive Director Jeff Tittel called the ruling “a big win for the environment,” and saw “a good chance we may win against future approvals because it clearly violates the Comprehensive Management Plan.”

He expects the BPU will halt any further action because it “would have never approved this project if Wittenberg didn’t hand it off to them.”

New Jersey Appleseed attorney Renee Steinhagen said the significance of the decision is that the Pinelands Commission must itself address projects that raise substantial issues regarding CMP compliance and cannot passively permit its Executive Director to make those decisions herself, without public hearing and fact-finding.  “It is the obligation of the Commission to protect the Pinelands, and it must actively do so rather than decline exercising its decision-making authority.”

What will happen on remand could perhaps be affected by changes to the Commission following its divided vote on the pipeline. Since then, two members have been replaced and there is a new chairman, with some alleging that the commission is being stacked with pipeline supporters.

The ex-governors included with their amicus brief to the court, a copy of a letter sent to all 40 New Jersey Senators in March 2015 urging them not to confirm Bob Barr, nominated to the Commission by Governor Chris Christie to replace Robert Jackson, who voted against the pipeline.

They cited their belief that doing so would undermine the independence of the Commission, which had hitherto operated “without undue interference” and expressed their concern that “recent events threaten to erode that independence.”

Barr was nevertheless confirmed a few weeks later.

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The Battle Continues

One day after the decision on the Pinelands pipeline, another proposed pipeline through New Jersey, known as the PennEast Pipeline, met with a similar setback.

The PennEast Pipeline, about 120 miles in length, would transport fracked natural gas nearly 120 miles from Luzerne, Pennsylvania to Mercer County, New Jersey, crossing the Delaware River and many smaller waterways, wetlands and parks.

As an interstate pipeline, PennEast is subject to the Federal Energy Regulatory Commission, which announced on November 8 that it is postponing the final environmental impact statement from December 16 until February 17 of next year.

The FERC wants additional data and more time for review in response to recent changes made to the proposed route, changes characterized by Tittel as “rearranging the deck chairs on the Titanic.”

Among the many environmental concerns about the PennEast pipeline is that it will contaminate drinking water supplies by causing naturally occurring arsenic to be released into groundwater.

  • Read here about the arsenic poisoning risk the Penneast Pipeline.
  • Dozens of municipalities in both states along the pipeline route passed resolutions in opposition and the New Jersey Rate Counsel and other New Jersey state agencies have raised objections. Read more about the protests, here.

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