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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

[Updated below – Chesterfield filed similar challenge]

In a highly significant legal development, Bordentown Township just filed NJ’s first federal Clean Water Act based challenge to the proposed Transco gas pipeline through the Pinelands, known as the “Southern Reliability Link” (SRL).

The federal Clean Water Act is not “preempted” by FERC review, which must comply with CWA requirements.  Under Section 401 of the Clean Water Act, FERC approvals must include a “Water Quality Certificate” – in this case, issued by the NJ DEP.

The Federal Energy Regulatory Commission (FERC) issued final approval of the SRL pipeline on April 7, 2016.

Bordentown seeks to block that approval and require FERC to conduct additional hearings.

The legal filing to FERC cited the same legal provision of the Clean Water Act used last month by the NY DEC to kill the proposed Constitution pipeline.

The Bordentown challenge cites 4 legal flaws and requests a stay and rehearing:

The intervenor seeks rehearing, rescission and a stay of the Commission’s Order because the Commission purports to foreclose State property rights and require a prohibited use of a preserved recreation parcel contrary to the laws of the State of New Jersey. The Intervenor also seeks rehearing because the Order violates the National Environmental Policy Act of 1969 (“NEPA”), 42 USC § 4332, by improperly segmenting the Project from other related projects and thus failing to adequately consider the combined impacts of the Project with the related project. A rehearing is also sought because the Order does not comply with Section 401 of the Clean Water Act, 33 USCA § 1341. Finally, a rehearing is sought because Transco failed to comply with the notice requirements.

This is exactly what I have been urging pipeline opponents to focus on. Bravo Bill Harrison!!!

While I would have drafted a more expansive and technically grounded brief in NJ’s Water Quality Standards, the Bordentown petition may be sufficient, due to the procedural defect alone, to get the Clean Water Act Section 401 issue in play. Here is that section of the petition:

3. The Commission erred by ignoring the requirements of the CWA.

The Commission’s Order makes no mention of having received a Water Quality Certification (“WQC”) from NJDEP or of NJDEP having waived issuance of the WQC. The  WQC is required pursuant to Section 401 of the CWA. The Commission should not have issued the Certificate without having received either the WQC or documentation that NJDEP waived issuing the WQC.

The Project involves the disturbance of about five acres of wetlands. Order at ¶ 106. Transco has applied to NJDEP for the requisite wetlands permit. Id. The Order notes that Transco has purchased 3.3 wetlands mitigation credits and that Transco is responsible for providing a restoration plan for the wetlands that will be temporarily disturbed. Id. However, the Order then improperly goes beyond these factual findings and improperly finds that the Environmental Assessment properly concludes that Transco’s proposed measures will adequately minimize impacts to wetlands. Order at ¶ 86. Condition 12 of the Order does require that a revised plot plan be submitted for all above ground structures proposed to be placed in wetlands to avoid direct wetlands impacts or provide documentation from NJDEP and/or EPA that its permit allows placement in wetlands. Order Appendix at 12.

The Order should not have been issued prior to NJDEP making its determination on the wetlands permit application submitted by Transco. NJDEP has been delegated authority by EPA to issue wetlands permits that would otherwise be issued by the Army Corps of Engineers pursuant to Section 404 of the CWA. The Commission does not have the authority to supersede the authority delegated to NJDEP under the CWA. It was improper for the Commission to determine that Transco’s adherence to measures contained in the Commission’s Upland Erosion Control, Revegetation, and Maintenance Plan and Wetland and Waterbody Construction and Mitigation Procedures along with the mitigation and restoration measures proposed by Transco as part of its wetlands permit application to NJDEP as adequate under the CWA. That is a determination that only NJDEP should make and the Commission should not have prejudged what that decision should be. It was also improper for Condition 12 of the Order to be limited to above ground structures proposed to be placed in wetlands. The Section 404 permitting program is far broader than just above ground structures being placed in wetlands. The Commission should have deferred action until NJDEP acted. After NJDEP acted, any certificate issued by the Commission should then require adherence to any conditions imposed by NJDEP for any development that is permitted by NJDEP to occur in wetlands and by precluding any development in wetlands that was denied by NJDEP.

Transco apparently convinced FERC to rely on a proposed wetlands mitigation scheme to satisfy the Clean Water Act Section 401 WQC requirement – even before NJ DEP even issued the Freshwateer Wetlands Act permits.

The Section 401 WQC issue is made more complex in NJ because NJ DEP has an EPA delegated Clean Water Act program, and under NJ DEP regulations, the State freshwater welands permit satisfies the federal WQC requirements, despite the fact that the two are distinct technically and legally.

More to follow on this and lets hope this gets picked up by the mainstream press because it is huge.

More to come.

[Update: People over Pipelines advises that Chesterfield also filed a similar challenge. The WQC 401 issue is more thoroughly briefed, but it is included in several other broader challenges:(PDF, no link):

D. The Commission Violated the Clean Water Act By Prematurely Issuing the Certificate Before the Section 401 Certification Was Obtained. 

1. The CWA requires a grant or waiver of a Section 401 certification prior to issuance of a federal authorization. 

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.”).

The holding in City of Tacoma is particularly instructive:

FERC’s role is limited to awaiting, and then deferring to, the final decision of the state. Otherwise, the state’s power to block the project would be meaningless. . . . FERC, in other words, may not act based on any certification the state might submit; rather, it has an obligation to determine that the specific certification ‘required by [section 401] has been obtained,’ and without that certification, FERC lacks authority to issue a license. 

City of Tacoma, 460 F.3d at 67-68 (italics emphasis in original; bold emphasis added).

2. The CWA allows no exceptions for conditional certificates. 

Transco does not dispute that Section 401 applies to the Garden State Expansion Project. To this end, Transco has applied for a certificate from the New Jersey DEP.21 As of the time that the Commission issued its Order, however, New Jersey had not issued Section 401 water quality certifications. Despite the absence of all required Section 401 certifications, the Commission nevertheless approved the certificate.

In an effort to circumvent the prohibition on issuance of a certificate under the Natural Gas Act prior to a grant of a Section 401 certification, the Commission – as it has routinely done in the past22 – conditioned commencement of construction on Transco’s receipt of required federal permits. Certificate Order, Appendix – Condition N8. This condition, however, does not cure FERC’s violation of the CWA. The CWA unequivocally prohibits the issuance of any license or permit prior to issuance of the Section 401 certification. The CWA simply does not include an exception for a conditional license or permit.

The impropriety of the Commission’s premature issuance of the Certificate Order is further evidenced by the design and intent of the CWA which gives the States paramount regulatory authority under the statute. Section 401 of the CWA specifically provides that “[a]ny certification provided under this section shall set forth any effluent limitations and other limitations, and monitoring requirements necessary to assure that any applicant for a Federal license or permit will comply with . . . any other appropriate requirement of State law set forth in such certification, and shall become a condition on any Federal license or permit subject to the provisions of this section.” 33 U.S.C. § 1341(d) (emphasis added). In order for the States to play their paramount roles, the Section 401 certifications must be issued before the Order.

3. The Commission order improperly limits the states’ authority under the CWA. 

The Commission’s Order also violates the CWA by providing that “[a]ny state or local permits issued with respect to the jurisdictional facilities authorized herein must be consistent with the conditions of this certificate.” Order at P. 148. Nothing in the Natural Gas Act, however, allows FERC to so limit the States’ powers under the CWA. See 15 U.S.C. § 717(d)(3); see also Dominion Transmission, Inc. v. Summers, 723 F.3d 238, 243 (D.C. Cir. 2013) (holding that with respect to the construction of a facility  contained in any Section 401 certifications trump any related conditions in the FERC Order.

That a State’s Section 401 water quality certification trumps anything that FERC might require in that regard – rather than the other way around – is expressly set forth in Section 510 of the CWA where Congress specifically provided that “nothing in this Act shall . . . be construed as impairing or in any manner affecting any right or jurisdiction of the States with respect to the waters . . . of such States.” 33 U.S.C. § 1370. The courts have confirmed the ultimate authority of the States: “[t]he states remain the ‘prime bulwark in the effort to abate water pollution’. . . . Congress expressly empowered them to enforce water quality standards that are more stringent than those required by federal law.” Keating, supra, 927 F.2d at 622 (quoting United States v. Puerto Rico, 721 F.2d 832, 838 (1st Cir. 1983)); see also City of Tacoma, 460 F.3d at 67 (“The Clean Water Act gives a primary role to states to block . . . local water projects. FERC’s role is limited to awaiting, and then deferring to, the final decision of the state. Otherwise, the state’s power to block the project would be meaningless.”)

The Commission’s Order flies in the face of the CWA. The Order exceeds the Commission’s statutory authority and impermissibly intrudes on the States’ rights to grant, condition, or deny a Section 401 certification. This would include placing more stringent conditions or deny a Section 401 certification. This would include placing more stringent conditions in any 401 certification than are contained in the Order to insure  that the Project will not pose an unacceptable risk to the States’ water quality. In the event that any Section 401 certifications are issued, their terms must be incorporated in the Commission’s Order. For now, however, the Commission should rescind or vacate the certificate as prematurely issued.

(footnotes):

21 The NJDEP Wetlands regulations contain a provision stating that a permit issued under the regulations constitutes a water quality cert required under Section 401. See N.J.A.C. 7:7A-2.1(d). NJDEP administers the 404 program. Transco applied for an Individual Permit under the NJDEP Wetlands regulations but the permit has not yet been issued.

22 See, e.g., Gunpowder Riverkeeper v. FERC, 807 F.3d 267 (D.C. Cir. 2015)(challenging premature issuance of FERC certificate as violating Section 401, but dismissed for lack of standing grounds); Tennessee Gas Pipeline Co., 154 FERC ¶61,194, P.99 (2016)(granting certificate to Connecticut Expansion Project and conditioning commencement of construction on receipt of Section 401); Constitution Pipeline, Order Issuing Certificate, 149 FERC ¶61,199 (2014), reh’g denied, 154 FERC ¶61,046, _P.62-69 (2016)(explaining practice of issuing conditioned certificates where Section 401 certification has not yet been granted).

Campaign Controlled by Corporate consultants, K Street lobbyists, and Corporate lawyers

“Van Ness Feldman is the ‘go-to’ firm for natural gas regulatory issues. The firm’s depth and breadth of experience is unmatched.” – U.S. News & World Report

Curious, in the wake of NY Gov. Cuomo’s Constitution pipeline kill and just when Bernie Sanders comes to town, the so called activists are invisible and the very next day, try to change the subject. Let me explain.

Good news today from the west coast provides an opportunity to illustrate my longstanding concerns about the misplaced focus of some NJ anti-pipeline activists.

First the good news:

The NY Times reports that US Army Corps of Engineers denied a permit for a coal export facility in Washington State:

• U.S. Denies Permit for Coal Terminal in Washington State

SEATTLE — The coal industry, shaken by dropping global demand and tighter air quality regulations, took another major hit on Monday when the United States Army Corps of Engineers said it would deny the permit for what could have been nation’s largest coal export terminal here in Washington.

The $665 million project, called the Gateway Pacific Terminal, was already hitting headwinds. The developer asked last month that the state environmental review on the project be delayed, citing “uncertainty and related costs.” And one of the largest potential suppliers of coal, Peabody Energy, filed for bankruptcy protection last month.

But in the end, the decision came down to fish.

(read the Corps decision – don’t worry faux “War on Coal” folks, Sanders has a “just transition” policy to assure fairness and funding for creation of new jobs.

The Army Corps decision enforced the Lummi Nation’s ancestral fishing rights recognized under an 1855 Treaty:

“The corps may not permit a project that abrogates treaty rights,” said Col. John G. Buck, the corps’ Seattle District commander, in a telephone news conference. The project, Colonel Buck said, “is not permittable.”.

Now to my point: let’s pose a hypothetical based on this huge Army Corps permit denial decision.

Suppose a well paid corporate PR consultant, corporate economic consultant, and a former K Street lobbyist now with a high powered DC corporate law firm (with energy industry clients) were billing the Lummi tribe for a campaign targeting FERC and pipeline safety issues and urging local Mayors to lobby FERC in Washington DC?

That strategy targets the wrong agency, wrong policy issue, wrong legal attack, wrong political strategy, and wrong location.

Given that wrongheaded strategy, you might even suspect that the Lummi were being ripped off, sandbagged and maybe even intentionally diverted from a winning strategy (i.e. targeting the Army Corps, Treaty, fishing rights), to a losing strategy.

Well, that’s just what is happening in the PennEast pipeline battle. Take a look:

PennEast opponents today are holding a Trenton press conference, as I write this, in opposition to the pipeline.

I could not bring myself to hop on the Riverline to Trenton – I just couldn’t stomach the circus.

Recall that just last week, I wrote about why a private property rights focus was a losing proposition.

Today, the PennEast crowd is touting exactly that – in their Media Advisory (boldface in original):

… lawyers for Homeowners Against Land Taking – PennEast (HALT) will appear in Superior Court in Hunterdon County, 71 Main St. Flemington, NJ, for a hearing on HALT’s trespassing lawsuit against PennEast.  HALT attorney Steve Richardson of Wiley Rein will be available for interviews after the court hearing.

For the record, attorney Steve Richardson of Wiley Rein is with DC beltway corporate firm.

Attorney Richardson previously served (Bloomberg bio) for over a decade as a beltway lobbyist for the law firm Van Ness Feldman, who represented energy industry giants, proposing insane fossil projects like this.

Richardson’s former law firm brags:

The robust production of domestic natural gas and oil supplies continues to create opportunities and challenges for the pipeline industry. Van Ness Feldman’s Pipeline & LNG practice group  is uniquely positioned to help clients navigate these evolving challenges by working with clients to devise creative and innovative solutions  in order to help capitalize upon new opportunities, meet challenges presented by regulators’ heightened safety concerns, and to influence the public policy debate regarding how to use the nation’s energy abundance. The scope of the firm’s Pipeline practice, if measured by number of pipelines and pipeline miles, continues to be the largest of any law firm in the country.

“Van Ness Feldman is the ‘go-to’ firm for natural gas regulatory issues. The firm’s depth and breadth of experience is unmatched.” – U.S. News & World Report

But corporate DC beltway lobbying and law firms are not alone among the PennEast crowd.

The PennEast group’s “Media Advisory” was drafted by and lists as contact person Jayne O’Connor, of the corporate PR firm Taft and Partners. Note all their corporate clients, including oil industry giant Conoco.

Ms. O’Connor failed to respond to my questions I sent her on Friday regarding the press advisory and public perception of conflicts of interest at Taft:

Hi Jayne – Bill Wolfe here, alternative media – Wolfenotes.com. I have a few questions on Media Advisory below:

1. I noticed the corporate clients of Taft and Partners, and wonder how you respond to a public perception that there are conflicts of interest? http://taftandpartners.com/#our-work/clients/

2. I Notice that Taft’s list of regional clients doesn’t even mention the PennEast pipeline people or ReThink Energy NJ as national or regional clients – why is that? No mention of this campaign in Case Studies or What’s New pages either.

Is there any concern that listing the PennEast campaign might harm your corporate brand?

3. How much is Taft being paid for the ReThink Energy NJ campaign? Sam question regarding various other consultants to the campaign?

The press conference today announces a FERC lobbying effort by Mayors:

Conservation leaders, citizens groups and a bipartisan group of elected officials will announce the results of a regional petition opposing the PennEast pipeline.  The petition collected more than 8,000 signatures from citizens across 2,000 zip codes in NJ and PA. Seven mayors from townships along the pipeline’s proposed route in NJ and PA will be present at this event. The mayors will be hand-delivering the petition signatures to the Federal Energy Regulatory Commission (FERC) in Washington, D.C. the following day, May 11.

As I’ve repeatedly written, a focus on FERC is a losing strategy – and political lobbying by Mayors is even a BIGGER loser, as FERC policy and precedent govern FERC decisions, not local politics.

So, just like my hypothetical, the high paid corporate consulting team is focused on the wrong agency, wrong policy issue, wrong legal attack, wrong political strategy, and wrong location.

The correct agency is the NJ DEP. The correct policy issue is the Clean Water Act, water quality standards, and state permits. The correct legal attack is CWA Section 401. The correct political strategy is grass roots organizing targeting the Gov. and DEP Commissioner. The correct location is Trenton.

This latest fiasco follows previous mis-fires and misguidance from well paid corporate economic consultants.

My guess is that the PennEast “Rethink Energy NJ” campaign has blown over $100,000 for bad advice –

Just think if all that money went into organizing a statewide coalition of climate, anti-fracking and anti-pipeline activists across the state?

But such a campaign will never spring from the inside of corporate PR, economic consulting and Beltway lobbying and law firms with corporate clients – or from an elite, Foundation funded, land trust.

Curious, just when Bernie Sanders comes to town, the so called activists are invisible and the very next day, try to change the subject.

At this point, it makes me wonder if they really want to win.

Hillary Clinton’s Pro-Gas Policy Is Just Like Gov. Christie’s

Sanders Should Be Asked To Oppose PennEast & Pinelands Pipelines & BL England Plant

Bernie Sanders is holding rallies on Sunday at Rutgers and on Monday in Atlantic City in advance on NJ’s June 7 Democratic primary.

These campaign events provide an excellent opportunity for NJ’s climate, anti-fracking, and anti-pipeline activists to get controversial NJ fossil infrastructure projects being developed under Governor Christie’s climate denying pro-gas Energy Master Plan in the national debate.

Sanders can speak to Superstorm Sandy as an example of the implications of climate change.

Sanders can link Clinton’s climate and energy policies as very similar to those of the deeply unpopular Gov. Christie.

The Sunday Rutgers event is close to ground zero of the highly controversial PennEast and Pilgrim pipeline battles.

The Monday Atlantic City event is in the backyard of activists fighting the Southern Reliability Link Pinelands pipeline and the South Jersey Gas Pinelands pipeline to the BL England power plant.

Bernie Sander’s “People Before Polluters” climate policy is in sharp contrast to Hillary Clinton’s.

The controversial proposed NJ pipelines and natural gas plants perfectly illustrate that contrast.

Sanders supports a ban on fracking, while Clinton cravenly used her State Department power to promote fracking around the world to benefit her corporate energy backers.

Clinton’s promotion of fracking as a strategic weapon against the Russian economy reveals how her Cold War dominated hawkish worldview always trumps rational policy and US domestic interests.

Sanders often speaks of how the system is rigged and how corporate interests have corrupted and bought government to advance their profits and not the interests of the people.

Governor Christie’s appointments of former corporate energy lobbyists and consultants to head the BPU and the DEP that rubber stamp approvals of pipelines and fossil power plants are right in Sanders’ wheelhouse.

I hope NJ’s climate, anti-fracking and anti-pipeline activists already have reached out to and briefed the Sanders people on all this so he is prepared to comment to the media and make this an issue in his speeches.

And let’s hope folks get out and attend these events in numbers, with lots of signs that name all the fracking pipelines for the national media and Sanders people to see.

No Private Idaho

The Certificate Policy Statement makes clear that holdout landowners cannot veto a project that the Commission finds is required by the public convenience and necessity after balancing all relevant factors and considerations.  (FERC Jordan Cove denial)

I’ve long been baffled by the failure of NJ pipeline opponents to develop a public campaign that focuses on perhaps the most powerful tool available to kill pipelines,  the requirement to obtain a Clean Water Act Section 401 Water Quality Certificate (as we saw last month in New York State DEC’s denial of the WQC for the Constitution pipeline). [Read the NY DEC denial]

I’ve been equally confused by what is a hopeless waste of time and resources focused on various FERC processes and NEPA legal issues (all while virtually ignoring climate change).

But perhaps the most troubling strategic mistake is the elevation of private property rights and legal remedies of landowners along the pipeline route, above the far more significant public lands and natural resource impacts and focus on the kind of political pressure and regulatory tools that won in New York.

This week, we saw another example of that misguided strategy grounded in private property rights and economic interests, see:

• LANDOWNERS, ‘GREEN’ GROUP FILE SUIT TO STOP PENNEAST FROM TRESPASSING

The FERC letter cited in that NJ Spotlight story was loaded with ammo to raise the WQ Certificate issues, yet it was all ignored in favor of the private landowner issues. Why?

Notably, the motive and remedy of the “green group” in that headline is not “green”, it is enforcement of the private property right and common law of trespass.

The motives are economic, not environmental, and the locus of concern is private, not public. These motives and interests shape the strategy and tactics of the opponents.

I’ve long opposed the property rights focus for ideological and strategic reasons. As a matter of principle, appeals to the public interest always trump narrower individually and often economically motivated private property rights. Collective democratic approaches always trump private individual initiative.

Time and resources spent protecting a private landowner’s back yard not only divert attention from the public interest and more effective collective tactics, they can actually undermine the public interest and fragment political coalitions (e.g. lead to deals on pipeline route alteration, co-location, or compensation or mitigation packages).

Plus, property rights are a two edged sword – pipeline corporations have property rights too, which they frequently assert to overcome the public interest and forestall effective regulation, in political, legislative, regulatory and judicial arenas.

But you don’t need to accept my ideological views or take my strategic advice.

In an incredible irony, just this morning, in casually exploring this group’s Rethink Energy NJ campaign webpage, I randomly came across a recent federal court decision that raises these issues.

Amazingly, that US District Court decision was analyzed in a “News and Insights” piece written by the law firm currently representing a group of private landowners opposing the PennEast pipeline named HALT:

• New D.C. Circuit Decision Provides Potential Tool to Clear Landowner Litigation From Utilities’ Rights-of-Way

This case could insulate public utilities and pipeline operators from challenges brought by property owners harmed by eminent domain or aesthetic impacts on their property.

The HALT group’s own law firm framed the legal issue thusly:

The Legal Question: When is Economic Harm Also Environmental Harm?

Gunpowder Riverkeeper offers insight into the majority of cases that are a hybrid of environmental and economic harm. Suppose a permit of the Department of Energy authorizes a utility or pipeline to take private land through eminent domain, or to construct a tower that obstructs a landowner’s view. Individual landowners may primarily experience economic harm from the permit. But they may also experience decreased recreational or aesthetic enjoyment of the environment. Such hybrid claims have traditionally been inside NEPA’s zone-of-interests test, even under the Ninth Circuit test. That is, the landowner’s economic harm is one of multiple harms, but the landowner is permitted to have mixed motives.

Importantly, Gunpowder Riverkeeper applies a new judicial skepticism to these hybrid claims. As the dissent pointed out, the brief, affidavits, and the administrative record all contained numerous allegations of environmental injury. But the court found these purported environmental injuries did not disguise that the principal injury was to the property rights of the litigants. And that was found to be an economic, not an environmental injury.  […]

In short, Gunpowder Riverkeeper could impact litigation at multiple levels of the electric grid. In its aftermath, both landowners and utilities must be more strategic about crafting their litigation approach. Early strategic choices can determine whether a potential challenge to far-reaching federal licenses ever make it past first base to reach the merits.

The law and FERC policy have long recognized this distinction:

Landowner property rights issues are different in character from other environmental issues considered under the National Environmental Policy Act of 1969 (NEPA).14

As I’ve repeatedly suggested, it’s time to HALT a flawed private oriented campaign and RETHINK your strategy.

Your own attorneys suggest as much.

[End note – here is a summary I just gave to pipeline opponents of the reasons why I conclude that FERC is a waste of time:

The Certificate Policy Statement makes clear that holdout landowners cannot veto a project that the Commission finds is required by the public convenience and necessity after balancing all relevant factors and considerations.  (FERC Jordan Cove denial)

1. FERC is totally captured by the gas industry and has the cover and support of  the pro gas climate of Congress and the Obama Administration. The FERC bureaucracy is predominately an energy engineering culture.

2. The gas law was written by the gas industry

[That capture results in Orwellian logic like this:

Projects designed to improve existing service for existing customers, by replacing existing capacity, improving reliability or providing flexibility, are for the benefit of existing customers. Increasing the rates of the existing customers to pay for these improvements is not a subsidy. Under current policy these kinds of projects are permitted to be rolled in and are not covered by the presumption of the current pricing policy. Great Lakes Gas Transmission Limited Partnership, 80 FERC ¶ 61,105 (1997) (Pricing policy statement not applicable to facilities constructed solely for flexibility and system reliability).

3. The pro-corporate Reagan Administration Era Courts have interpreted the law in favor of the gas industry.

4. Democratic activism has zero impact on FERC or the federal courts. (Yes, I am aware of FERC denial of  Jordan Cove in Oregon, which is the exception that illustrates the rule, and which in itself has a massive loophole:

48. Our actions here are without prejudice to Jordan Cove and/or Pacific Connector submitting a new application to construct and/or operate LNG export facilities or natural gas transportation facilities should the companies show a market need for these services in the future.).

5. Two major pipelines have just been killed as a result of State Government decisions or pressure (Constitution in NY killed outright by Goc. Cuomo DEC Clean Water Act veto and Kinder  Morgan withdrew after the State Attorney General issued a very critical Report).

6. Those state government decisions were driven by huge grassroots activism and organizing.

7. Lawyers are notoriously lousy strategists and are conflicted by their need for legal fees.

8. Large legal fees instead could be use to support organizing.

Conclusion: