A Model For PennEast Pipeline Foes

Can NJ Follow Connecticut’s Lead on Killing An Interstate Gas Pipeline?

Or Will Christie’s DEP Be Allowed To Run Out the 365 Day Clock?

I’ve been frustrated by the PennEast (and other) pipeline opponents’ lack of focus on the only tool that can kill the pipeline (and hold State officials accountable). [Note: just found this powerpoint from Princeton Hydro – why is that analysis not field deployed by now?]

Off shore LNG opponents have understood how this game is played and they are targeting Gov. Christie’s (and Cuomo) power to veto the project (I argue that this effort is too little and too late, but at least it is happening).

Christie and his Attorney General and DEP have similar power to kill the PennEast pipeline – yet opponents are completely ignoring this critical power.

FERC is not your friend and you won’t win there (or in court challenging their NEPA review or final FERC certificate).

Municipal and County resolutions, property owner denial of access, property rights arguments, filing for FERC intervention, comments on NEPA EIS documents, DEP FERC NEPA reviews, the DRBC, the D&R Canal Commission, NJ State House Commission (land diversion), delays, “regulatory uncertainty”, bad press, polls, public education, press conferences, religious ceremonies, protests, et cetera are all great tactics in organizing and building public opposition, but will not win the day or hold State officials accountable.

You are missing the target. Badly missing the target.

But don’t take my word for it:

(Old) Newsflash:

State officials said the decision was a surrender to intense opposition that led both Connecticut and New York to deny permits for the Islander East project, a joint venture between Spectra Energy and National Grid.

Attorney General Richard Blumenthal, who negotiated the withdrawal of the appeal, described the decision as “the white flag we’ve been waiting to see – final, irrevocable and undeniable surrender.”

The line, which Spectra Energy and National Grid had spent tens of millions of dollars to plan, would have supplied gas to an estimated half-million homes. But state environmental officials said the pipeline would harm water quality and damage important shellfish beds around the Thimble Islands in Long Island Sound.

Note the tenses: (Source: Downstream Today – an energy industry publication)

Project description

The Islander East Pipeline was a proposed interstate natural gas pipeline that could supply natural gas in Connecticut, New York City, and Long Island, N.Y. Spectra Energy and KeySpan Energy were to co-own the pipeline.

The pipeline would have extended from North Haven, Conn., across Long Island Sound to the vicinity of Yaphank, N.Y. The Islander East facilities would have consisted of 50 miles of new 24-inch diameter pipeline with initial capacity of 260,000 dekatherms of natural gas per day.

Approximately one mile of the pipeline route was in dispute because it passed through the environmentally sensitive Thimble Islands region south of the Connecticut coastline. In February 2009, Connecticut’s governor and attorney general — both opponents of the project — declared the project “dead” because Spectra had withdrawn its appeal to the U.S. Department of Commerce to overturn the state’s denial of permits for the project. Previously, the U.S. Supreme Court let stand the state’s refusal is issue a water quality permit.

Here is the US Court of Appeals decision upholding the State’s denial by Connecticut DEP of a Water Quality Certificate:

Here is the EPA Section 401 Water Quality Certificate Guidance that explains all the details on how to do this.

Here is the US EPA Water Quality Standards Handbook – see especially Chapter 4 “Antidegradation”

Here are the applicable NJ DEP regulations:

1. Surface Water Quality Standards (SWQS): existing use protection; numeric and narrative criteria; anti degradation policy for C1 waters

2. Category One stream designations pursuant to the SWQS

3. Stormwater management rules C1 “Special Water Resource Protection Areas” (SWRPA) – 300 foot buffers and no reduction of “existing water quality” anti degradation standard from the SWQS

4. Stream encroachment permit rules that incorporate the SWRPA as a “riparian zone”

5. The Freshwater Wetlands permit rules that prohibit DEP from issuing any permit that would “cause or contribute to a violation of any applicable State water quality standard”

6. The Water Quality Management Planning rules that

• “Establish policies, procedures and standards which, wherever attainable, help to restore, enhance and maintain the chemical, physical and biological integrity of the waters of the State, including ground waters, and the public trust therein, to protect public health, to safeguard fish and aquatic life and scenic and ecological values, and to enhance the domestic, municipal, recreational, industrial and other uses of water”;
• “Establish water quality goals and water quality standards for the waters of the State”;
• provide that the DEP Commissioner “shall not undertake, nor shall he or she authorize through the issuance of a permit, any project or activity that conflicts with applicable sections of an adopted WQM plan or with this chapter.”

7. The NJPDES stormwater permit rules (NJAC 7:14A-25) that require compliance with the SWRPA in the storm water management rules and provide the municipal stormwater permits “shall require compliance with the applicable design and performance standards established under N.J.A.C. 7:8 for major development as defined in N.J.A.C. 7:8-1.

So, there you are folks – a roadmap to a win. Have at it. (text in italics is verbatim DEP regulation)

And don’t let DEP tell you that DEP doesn’t do things that way and that non point pollution is not regulated or subject to compliance with the SWQS.

Your challenge is to force DEP to change the way they issue permits and to start enforcing existing regulatory requirements, particularly the SWQS.

If opponents don’t put this issue on DEP’s plate and force them to respond, the will waive their power and let the 365 day clock run out.

In a future post, I will lay out the way to mount this challenge technically.

*PS – none of this is any secret to PennEast’s or DEP’s lawyers, so there is no benefit in keeping these issues quiet in some hope of outmaneuvering them.