Advice for PennEast and All NJ Pipeline Opponents On Upcoming DEP Permit Hearings

Transco and NJ Natural Gas SRL Pipeline Will Set Legal Precedent On Pipeline Reviews

The NJ Department of Environmental Protection (DEP) is holding two very important public hearings on wetlands and CAFRA permits and Clean Water Act Section 401 Water Quality Certificates (WQC) for the Transco compressor station on Monday August 22 and the NJ Natural Gas Southern Reliability Link (SLR) pipeline on Wednesday September 7.

Without going into the details here, let me just say that various pipeline opponents will be submitting various comments that make certain scientific and legal attacks on those pipelines.

Many of these arguments will be made to NJ DEP for the first time, including arguments regarding Clean Water Act Section 401 WQC, NJ DEP wetlands permits and compliance with DEP surface water quality standards, and CAFRA permit and consistency with NJ’s federally delegated CZMA – there might even be novel Clean Air Act issues raised.

The applicants Transco and NJ Natural Gas Co. will have to rebut those arguments with scientific and legal arguments of their own.

The DEP will be required to respond to both sets of comments when they make a final decision on the permit (e.g. there are 3 options: approve, deny, or approve with modifications and conditions).

In doing so, the DEP will establish the State of New Jersey’s scientific and legal rationale regarding very critical scientific, regulatory policy and legal issues that will be challenged before the Office of Administrative Law and the Courts (perhaps State and Federal).

Given the novel and precedential nature of these DEP decisions, it is imperative that pipeline opponents make their strongest arguments possible.

If poor quality or legally and/or factually unsubstantiated arguments are made, those weak arguments will be easily dismissed by the gas industry lawyers and DEP permit writers. The DEP will adopt a bullet proof or difficult to challenge permit and WQC rationale.

If that happens, ALL FUTURE PIPELINE CHALLENGES WILL BE IMPACTED NEGATIVELY – as well as the SRL and compressor station.

There’s a lot on the line – you may have held your powder dry to date, but NOW you have skin in the game!

So, let’s hope that those groups who have refrained from making the various Clean Water Act Section 401 WQC and wetlands arguments publicly thus far show up and bring their A game.

I am referring specifically to PennEast opponents and Rethink Energy NJ, who have focused on FERC thus far, as well as groups like Delaware Riverkeeper who has raised and litigated the 401 WQC issue in other states.

Be there and bring your lawyers and consultant experts. Put your analysis in the record. If you fail to do so, it will come back to bite you.