NJ Legislators Must Strengthen Proposed Pipeline Resolution

Current version ignores climate change and NJ DEP’s Clean Water Act powers

Major omissions reveal flawed strategy

On Thursday (5/12/16), the Assembly Regulatory Oversight Committee will hear ACR 53 – for an overview of what that is about, see NJ Spotlight:

• NJ COULD ASK FEDS TO RETHINK POLICIES ON SITING INTERSTATE PIPELINES

Amid a growing outcry against the expansion of natural-gas pipelines, a New Jersey legislator wants to press the federal government to revamp the laws governing approval of interstate energy projects. …

The proposal is being advanced at a time when at least 15 new gas pipeline expansions or projects have been either approved or are under review in New Jersey, a trend that has sparked wide opposition around the state.

With a buildup like that, of course I rushed to read the Resolution.

Imagine my extreme disappointment upon reading that the Resolution failed to even mention climate change or include the federal Clean Water Act Section 401 Water Quality Certificate requirements.

That is the legal power that NY DEC just used to kill the proposed Constitution pipeline, so it is a remarkable oversight.

That is the legal power that Chesterfield and Bordentown Townships just relied on to petition FERC for a stay and rehearing on the Southern Reliability Link Pinelands pipeline, as I wrote yesterday.

In addition, the Resolution failed to include the federal Coastal Zone Management Act. That is the legal power the State of Connecticut use to kill the proposed Islander East pipeline.

So, I fired off this letter to the sponsors – if they don’t agree to these requested amendments, I have to question either their competence or their motives.

I am writing this today, because NJ Spotlight’s set up story was spun so favorably – itself a remarkable fact given the egregious flaws in the Resolution –  and the Thursday legislative hearing is likely to get lost in press coverage of the DEP budget. The Senate is hearing the DEP budget at the same time. And I don’t think that is a coincidence:

Dear Assembly-persons Muoio and Gusciora:

I am writing to you as sponsors of ACR 53  which “urges President and Congress to revise laws concerning interstate natural gas pipeline approvals to more fully address adverse impacts.”

The ACR is an expression to the President, Congress, and FERC of NJ State law and policy. As such, it should reflect the most critical provisions of State law related to gas pipeline approvals and the full scope of adverse impacts, based on the best available science.

Accordingly, I suggest the following 3 amendments to improve the ACR:

1) Global Warming Response Act

In 2007, the Legislature passed and Governor Corzine signed the Global Warming Response Act (GWRA) P.L.  2007, c. 112;  (N.J.S.A 26:2C-37), at the time, one of the strongest greenhouse gas laws in the country.

Simply put, NJ can not meet the aggressive GWRA emission reduction goals with continued investments in and construction of major fossil fuel infrastructure.

Perhaps more importantly, the most recent science suggests that we need to leave at least 80% of known fossil fuel reserves (coal, oil, & gas) in the ground if we are to limit warming to 2 degrees Celsius, and even more to avoid the 1.5 degree goal recently embraced in the Paris climate accords.

Finally, methane is a far more potent greenhouse gas than carbon dioxide, especially in the short run. Several credible recent studies document that the lifecycle greenhouse gas emissions from natural gas are at least as bad – or even worse – than coal, thus gas is not a “bridge fuel” to a stable climate future.

The ACR must be amended to reflect the goals of the NJ GWRA and the most recent science.

2) Clean Water Act Section 401 Water Quality Certificate requirements

The federal Clean Water Act is not preempted by the federal Natural Gas Act (NGA) or the Federal Energy Regulatory Commission (FERC).

NJ DEP administers a federally delegated Clean Water Act program.

As you may know, on April 22, 2016, the NY State Department of Environmental Conservation (DEC) denied a required Clean Water Act Section 401 water Quality Certificate (WQC) of the proposed Constitution pipeline.

The NYS DEC decision should be a model for NJ DEP. For that DEC decision, see:

http://www.dec.ny.gov/docs/administration_pdf/constitutionwc42016.pdf

As you may know, on May 9, 2016, Chesterfield and Bordentown Townships filed petitions with FERC seeking a stay for, among other things, failure to comply with the Clean Water Act Section 401 WQC requirement.

Specifically, the Chesterfield brief lays out the legal framework:

“Section 717(c) of the Natural Gas Act preserves the applicability of the Clean Water Act to projects subject to the Commission’s certification authority. Under the Clean Water Act, the States are responsible for enforcing water quality standards on intrastate waters. 33 U.S.C. § 1319(a). To that end, Section 401 of the CWA provides that “[a]ny applicant for a Federal license or permit to conduct any activity including, but not limited to, construction or operation of facilities, which may result in a discharge into the navigable waters, shall provide the licensing or permitting agency a certification from the State in which the discharge originates or will originate . . . that any such discharge will comply with the provisions of . . . this Act.” 33 U.S.C. § 1341(a)(1) (emphasis added). Most importantly for purposes of this motion, the CWA  provides that “[n]o license or permit shall be granted until the certification required by this section has been obtained or has been waived. . . .”Id. 

In accordance with the plain terms of Section 401, the United States Supreme Court has held that the CWA “requires States to provide a water quality certification before a federal license or permit can be issued for activities that may result in any discharge into intrastate navigable waters.” PUD No. 1 of Jefferson County v. Wash. Dep’t of Ecology, 511 U.S. 700, 707 (1994) (emphasis added). Numerous other courts concur. See City of Tacoma v. FERC, 460 F.3d 53, 67-68 (D.C. Cir. 2006);Keating v. FERC, 927 F.2d 616, 619 (D.C. Cir. 1991) (“Without such state certification, neither the FERC license nor the Corps permit may be issued.”); Fredericksburg v. FERC, 876 F.2d 1109, 1111 (4th Cir. 1989) (“Virginia’s denial of such certification precludes issuance of the license.”).”

[complete FERC petitions available upon request]

I strongly urge you to amend the Resolution to include mandatory Clean Water Act Section 401 requirements.

3) Coastal Zone Management Act

Similar to the federal Clean Water Act, the exercise of State “consistency determinations” pursuant to State law and the federal Coastal Zone Management Act are not preempted by the NGA or FERC.

The proposed “Islander East” pipeline case in Connecticut provides legal precedent and an example of how the State of Connecticut used CZMA powers to deny approvals for the pipeline.

The State’s denial was upheld by the US District Court, affirmed by the US Court of Appeals, and the US Supreme Court denied certiorari, see:

ISLANDER EAST V. MCCARTHY, 525 F.3d 141 (2nd Cir. 2008)

https://casetext.com/case/islander-east-pipeline-v-mccarthy

I strongly urge you to amend the ACR to include NJ DEP powers under the CZMA and State coastal laws.

I am available to provide additional information to support the above amendments or work with OLS or your staff.

I appreciate your favorable consideration and will testify on the ACR on Thursday before the Assembly Regulatory Oversight Committee.

Sincerely,

 

cc: Assemblywoman Spencer and Senators Smith, Bateman, Greenstein, and Gordon