Murphy DEP Given Chance To Kill South Jersey Gas Pinelands Pipeline

First major test of Gov. Murphy’s Climate Leadership

SJG requests DEP permit extensions

Get a competent lawyer and immediately petition DEP to deny the extension request. This must happen before June 23

[Update: 6/29/18 – Murphy DEP ignored public comments and rubber stamped the extension requests, see Press of Atlantic City story:  South Jersey Gas gets permit extensions for pipeline

The pipeline, called the Cape Atlantic Reliability Project, continues to meet Coastal Zone Management and Freshwater Wetlands Protection Act rules, said the letter from Division of Land Use Regulation Manager Ryan J. Andersen.

The Christie DEP approved pipeline never complied with those permit regulations and their biased permit approvals should have been re-opened.

The Murphy Administration now owns the Pinelands pipeline.

In an attempt to downplay the issue and dodge any responsibility, the approval was issued by a lowly Bureau Chief. Shame on them.~~~ end update]

To avoid expiration, South Jersey Gas (SJG) recently quietly requested that the Murphy DEP extend permits issued for the controversial Pinelands pipeline, which was strongly backed by the Christie administration.

The extensions are requested for a freshwater wetlands “General Permit” (GP) and an individual Waterfront Development permit (IP). The Christie DEP issued these permits in July 2013.

These extension requests are not automatically granted by DEP, but are subject to review. DEP has adequate discretion for denial of the extension requests under DEP rules (e.g. for waterfront development IP extension, see: NJAC 7:7-27.3). DEP denial would force SJG to apply for new permits and begin the permit process all over again, under presumably more aggressive Murphy DEP oversight and purportedly strict climate and energy policies.

After SJG benefitted from green lighting numerous regulatory approvals by the Christie administration, the ball is now in the Murphy DEP’s court.

How DEP handles these SJG requests will be the first major test for Gov. Murphy’s claim to climate leadership. If the Murphy DEP rubber stamps the SJG extension request, they own this project.

Murphy recently signed Legislation (the PSEG nuke bailout bill) that declared a “moral imperative” that the State pursue infrastructure that “does not not produce greenhouse gases“:

Given the overwhelming scientific consensus that fossil-fuel use is causing potentially irreversible global climate change and the attendant environmental catastrophes, it is a moral imperative that the State invest in energy infrastructure within and outside the State that does not produce greenhouse gases. ~~~ Nuke bailout law, P.L. 2018, c.16

The SJG fossil fueled gas pipeline not only “produces” huge quantities of greenhouse gases via methane leaks (methane is a potent GHG: it has 80 – 100 times more warming potential than CO2 in the short run), it also is part of a huge fossil energy infrastructure, which includes re-powering the BL England fossil fueled power plant, which also is a huge emitter off greenhouse gases.

During the original regulatory review of the pipeline by the Board of Public Utilities, DEP, and the Pinelands Commission, SJG made claims that the pipeline was critically needed to avoid catastrophic loss of electric power and gas service to the region. They made claims that the lights would go off and people would freeze in the dark without gas or electric power (i.e. the sham vulnerability and reliability argument). BPU Order summarized as follows:

To avoid these alleged critical energy infrastructure vulnerabilities –“including the potential for blackouts” (see p. 31) – SJG pressured BPU, DEP and the Pinelands Commission to expedite approvals for the pipeline. BL England made the same arguments about the power plant.

While completely ignoring the science and risks of climate change, the Christie BPU agreed with these SJG scare tactics and concluded (see p. 42)

Amazingly, the Christie DEP press office openly revealed bias in this incredibly unprofessional false statement in support of the SJG scare tactics:

Considine also defended the project on grounds that closing the plant, which sits on Little Egg Harbor in Upper Township, would increase the risk of brownouts in South Jersey. (Philadelphia Inquirer, 8/8/16)

For SJG to now request extension to avoid expiration of DEP permits – after 2 Christie DEP extensions of air pollution compliance deadlines and 5 years of construction delays – exposes the lies they told about the critical and pressing nature of the energy infrastructure vulnerability. 

On that basis alone, DEP should deny the extension requests and force SJG through a new permit review process under the Murphy administration’s “moral imperative” energy infrastructure and climate policy.

But there are additional grounds for DEP to deny the extension requests for failure to comply with DEP regulations.

Specifically:

1) the pipeline and BL England projects have changed;

2) important facts and environmental conditions have changed;

3) DEP regulations have changed. Under DEP permit extension rules, if the rules change, then DEP must DENY the extension request. No wiggle room. They must deny. The wetlands rules have changed regarding: a) GP #2; b) HDD under streams; and c) the definition of water quality certificate changed, a change that effects both the waterfront development and wetlands permit regulations); and,

[CLARIFICATION – rule change is not an automatic basis for denial. The applicant must demonstrate compliance with rule changes. Review and rejection of that demonstration is how the Murphy DEP could reverse Christie DEP regulatory policy.]

4) the original DEP permits were deficient and fatally flawed.

Specifically, neither the applicant SJG nor DEP ever conducted a water quality analysis to demonstrate compliance with NJ surface water quality standards. DEP therefore lacks any factual basis to issue the permit approvals or the water quality certification mandated by law.

Regulatory approvals that lack any factual basis in the administrative record are routinely rejected by courts as “arbitrary and capricious”. Courts do no defer to agency expertise when there is no factual basis in the record to support the agency’s decision.

The SJG extension request now provides the opportunity to re-litigate these issues with the more receptive Murphy DEP.

In addition to the rules governing permit extensions, other DEP regulations specifically include authority to re-open and/or amend or revoke permits if mistakes were made or if material facts were ignored or if material facts have changed.

Pipeline activists must put a full court press on Gov. Murphy and Acting DEP Commissioner McCabe and demand that they deny the SJG extension requests and force SJG back through a de novo permit review process.

DEP has just 15 days – the clock started ticking on June 8, 2018 – to make a decision so advocates must work very quickly and aggressively. Get out a letter to the Gov., issue a press release, and hold an event at the DEP building.

Get a competent lawyer and immediately petition DEP to deny the extension request. This must happen before June 23.

[Update: I just sent this Hail Mary letter requesting legislative oversight:

Dear Chairman Smith:

On June 8, 2018, South Jersey Gas (SJG) requested that DEP extend freshwater wetlands and waterfront development permits issued by the Christie Administration’s DEP to the controversial Pinelands pipeline.

DEP has just 15 days to make a decision under applicable DEP regulations. DEP has adequate authority to deny the SJG request as it does not comply with DEP regulations governing permit extension.

Briefly, the project has changed, material facts have changed, applicable regulations have changed, and the underlying permits were defective for failure to conduct required water quality analysis to demonstrate compliance with NJ surface water quality standards and provide a basis to issue the water quality certification required under DEP’s own regulations.

The Legislature recently found:

“Given the overwhelming scientific consensus that fossil-fuel use is causing potentially irreversible global climate change and the attendant environmental catastrophes, it is a moral imperative that the State invest in energy infrastructure within and outside the State that does not produce greenhouse gases. ~~~ Nuke bailout law, P.L. 2018, c.16

Given this “moral imperative” to avoid investments in fossil infrastructure and the biased regulatory process under which the Christie administration issued DEP, BPU and Pinelands Commission approvals, I urge you to conduct legislative oversight of DEP’s review of the SJG extension request.

Time is of the essence.

I discuss this issue in more detail in the article below.

I appreciate your timely support.

Respectfully,

Bill Wolfe

Murphy DEP Given Chance To Kill South Jersey Gas Pinelands Pipeline

http://www.wolfenotes.com/2018/06/murphy-dep-given-chance-to-kill-south-jersey-gas-pinelands-pipeline/