“More Ways We Are Fucked”

A Burlington County Legislator Laid The NJ Legal Foundation

Energy corporations own all three branches of federal government, state agencies, and the law

We’re FERC’ed

Chesterfield NJ, site of compressor station

“More Ways We Are Fucked” –

Those were the sentiments of a friend with People Over Pipelines, the local group battling the Williams Transco “Garden State Expansion Project” compressor station and NJ Natural Gas pipeline.

After getting screwed by the rigged DEP permit process, reamed by the Christie corporate BPU and betrayed by the corrupt Christie-Wittenberg Pinelands Commission, the group is now seeking to appeal the DEP permits.

As a former DEP regulator well versed in the regulatory game, I’ve long known we’re fucked, and fucked at multiple scales and dimensions – from taking on polluters and addressing climate change to challenging even minor environmental permits.

I’ve delicately tried to explain to residents and pipeline opponents that the regulatory game is rigged, but tried to do so in a way that does not disable activism and lead to cynicism, apathy and despair.

But, I must say, despite the race to the bottom and corporate polluter driven downward spiral of environmental regulation, even my worldly perspective has been surprised to learn exactly how outrageously rigged the game can be when played by Christie corporate hacks .

The latest example of a rigged game – that led to the POP conclusion of being “fucked” – comes not from corporate hacks at DEP or BPU or the Pinelands Commission or FERC- but rather from the judicial branch and the law.

I advised POP that the next step in the process was to get a lawyer to appeal the DEP permits administratively through the Office of Administrative Law (OAL) and that the most fruitful attack was the issuance of the DEP wetlands permit and “water quality certificate” (WQC).

I am no lawyer, but instead relied on my professional understanding of: 1) the EPA delegated DEP surface water quality standards and wetlands permit program, EPA Clean Water Act Section 401 WQC Guidance, and the NJ OAL appeal processes; 2) the New York State DEC denial of the Constitution pipeline’s WQC; and 3) a  successful Connecticut pipeline kill upheld by US District and Circuit Court of Appeals known as “Islander East”. (too lazy to post links to all these documents – shoot me an email if interested)

That Islander East case ruled that the federal Natural Gas Act did not preempt state permits issued pursuant to the Clean Water Act and Coastal Zone Management Act and upheld the State of Connecticut’s permit denial.

Like I said, I am not a lawyer, so was not aware that a recent federal court decision basically ruled that the State permit and administrative appeals process was preempted by the NGA and all challenges must be filed in federal appeals court. (A lawyer told me this – I’ve not read the decision).

BOOM! Just like that, the federal courts extinguished fundamental State law regarding environmental permitting and administrative appeals processes – including citizens rights to access state courts and state agencies.

It’s not enough that the federal Natural Gas Act was written by and for the gas industry or that the Federal Energy Regulatory Commission (FERC) that enforces the law is a rubber stamp that is completely captured and wholly owned by the gas industry, or that State energy regulatory commissions and environmental agencies are mostly in the tank for the fossil and nuke energy industry.

No, that’s not enough for these greedy bastards that are destroying the planet.

These corporate bastards have the courts as well – they own all three branches of government and law.

The public was fucked.

In addition, not only has federal law, FERC and federal courts fucked the public, but NJ Legislature and State Courts have screwed them as well.

The NJ Administrative Procedure Act (APA) at N.J.S.A. 52:14B-3.2, 3.3 was amended in 1993 to restrict a State agency from allowing “third parties” to appeal to the Office of Administrative Law to challenged a State agency permit.  The “third parties” that have  a right to go to OAL to challenge an agency decision false into 2 groups: 1) a permit applicant who was denied a permit or doesn’t agree with permit conditions, or 2) those with a “particularized” property right or constitutional right to an OAL hearing.  The courts have construed these amendments very strictly. Court have found that a “particularized interest” standard is very high, and it is not met by even an adjacent property owner

How more “particular” can an interest be than when a permit impacts your private property?

BOOM!

“Again, more ways we’re fucked”.

So, just who was it that amended the NJ Administrative Procedure Act to limit citizens access? And why? Can we string the bastard up?

Ironically, very few people realize that Burlington County farmers and residents that long have supported preservation of rural farmlands have been fucked by one of the early leaders of the Burlington County farmland preservation program.

Specifically, former Gov. Christie Whitman’s DEP Commissioner and Burlington County State Assemblyman Bob Shinn was the sponsor of the 1993 amendments to NJ’s law that narrowly restricted the standards to challenge a DEP permit at OAL:

Section 3.3a of the APA, as amended in 1993, clearly instructs that “[e]xcept as otherwise required by federal law or by statute that specifically allows a third party to appeal a permit decision, a State agency shall not promulgate any rule or regulation that would allow a third party to appeal [administratively] a permit decision.” N.J.S.A. 52:14B-3.3a. A third party is defined in the statute as “any person other than: a. [a]n applicant for any agency license, permit, certificate, approval, chapter, registration or other form of permission required by law; b. [a] State agency; or c. [a] person who has a particularized property interest sufficient to require a hearing on constitutional or statutory grounds.” N.J.S.A. 52:14B-3.2 (emphasis added).

By enacting these limitations, the Legislature unmistakably intended to prevent the processing of permit applications by State agencies from being bogged down by time-consuming and costly formal hearings in the OAL. To require such formal hearings routinely in every instance where a local resident raises some objection to a proposed State permit could produce enormous delays. Such hearings could easily consume substantial public and private resources. They are also prone to convert an agency’s administrative review process into a veritable litigation battleground. See N.J.S.A. 52:14B-3.1 (noting disruptive effects and “chaotic unpredictability and instability” potentially caused to the State’s business climate by allowing challenges to permits by third parties “who have no particularized property interests or who are not directly affected by a permitting decision”); see also In re NJPDES Permit No. NJ0025241 Issued to Asbury Park City, 185 N.J. 474, 482, 888 A.2d 454 (2006) (citing the same legislative finding).

Shinn sponsored that horrible Legislation at the request of developers, polluters, and the business community who wanted to “streamline” the process and eliminate the public’s rights.

I hope that Bob Shinn is held accountable and is shamed by his Burlington County neighbors for doing that – but I somehow doubt that will happen.

So we’ll do it now: Shame on you Bob Shinn!