Demand Gov. Murphy Issue Executive Order Imposing Moratorium On State Approvals of New Fossil Infrastructure
Demand Murphy DEP Enforce Clean Water Act
A Regulatory Roadmap Is Provided Below
NJ Attorney General Grewal and opponents of the PennEast pipeline are calling the US 3rd Circuit Court of Appeals decision a “major victory” and a “groundbreaking ruling” and that the decision “stops PennEast in their tracks”.
They are exaggerating, misleading the public, making factually false statements, and simply not telling the full story. The decision is not a “groundbreaking ruling”, not a “major victory”, and will not “stop the project in its tracks”.
By making these exaggerated and false claims, they are undermining activist efforts to block all proposed pipelines and all fossil infrastructure, to inject climate change in regulatory decisions, and to enforce the Clean Water Act.
First, with respect to the “groundbreaking” claim. A federal district court previously reached exactly the same conclusion on the proposed Potomac Pipeline, see:
Columbia Gas’s lawsuit was unusual in that a private company tried to use the power of eminent domain to take public land. It claimed that power by virtue of the permit granted to the project by the Federal Energy Regulatory Commission.
The judge denied Columbia Gas injunctive relief because it found no substantive case, Upper Potomac Riverkeeper Brent Walls said in a statement delivered by live stream after the ruling. Private industry doesn’t have the right to file an eminent domain case against the state of Maryland, the judge found, because the state has sovereign immunity, he said.
[Update: Here is another precedent cited in the PennEast opinion that shows that PennEast was not a “groundbreaking” decision:
While the Supreme Court and federal Courts of Appeals have not addressed the precise issue that we have here – whether condemnation actions under the NGA are barred by Eleventh Amendment immunity – the one reported district court decision to do so held that Eleventh Amendment immunity is indeed a bar. In Sabine Pipe Line, LLC v. Orange, County, Texas, the pipeline company plaintiff argued that, because the federal government could exercise its eminent domain power to condemn State property, there was “ no reason to treat a delegation of the same authority any differently.” 327 F.R.D. at 139. The court disagreed. It explained that , like PennEast’s arguments, the plaintiff’s “theory of the case erroneously assumes that by delegating one power, [that of eminent domain], the government necessarily also delegated the other, [the ability to sue the States].”
Amazing that my Googling seems to have done better legal research – in turning up the on point Potomac Pipeline District Court decision – than the 3rd Circuit. ~~~ end update]
The NJ AG’s claim is more difficult to dismiss. It requires a legal analysis of the opinion itself. I’ll hold off on that for now. (I’ve since read the opinion, see relevant updates above and below).
But I will note that the Court explicitly stated that the decision was not a barrier and identified a “workaround”. (NJ Spotlight):
“Our holding should not be misunderstood,’’ the court said in its 34-page decision. “Interstate gas pipelines can still proceed… We simply note there is a workaround.’’ It remanded the case back to the district court for dismissal of the claims against the state.
[Update: Whoaa! The Court identified a HUGE workaround – I find it very curious and highly misleading that the full text of the opinion on that “workaround” was truncated not included in the NJ Spotlight story. So here is what the Court actually wrote regarding “workarounds”. The 3rd Circuit wrote:
But our holding should not be misunderstood. Interstate gas pipelines can still proceed. New Jersey is in effect asking for an accountable federal official to file the necessary condemnation actions and then transfer the property to the natural gas company. Cf. Kelo v. City of New London , 545 U.S. 469, 480 ( 2005) (discussing how broadly the Supreme Court has defined “public purpose” under the Takings Clause). Whether, from a policy standpoint, that is or is not the best solution to the practical problem PennEast points to is not our call to make. We simply note that there is a work-around.
This means that pro-gas Trump administration – Trump has already issued an Executive Order seeking to strip States of Clean Water Act Section 401 authority over pipelines and EPA just proposed rules to do so – and the Trump FERC could condemn the property. How likely is that? Very.
In the alternate, the Court also identified another “workaround” by Congress. How willing are the “all the above” Obama energy state Democrats likely to join Republicans to create that “workaround”?:
PennEast protests that, because the NGA does not provide for FERC or the federal government to condemn the necessary properties, the federal government cannot do so. But one has to have a power to be able to delegate it, so it seems odd to say that the federal government lacks the power to condemn state property for the construction and operation of interstate gas pipelines under the NGA. In any event, even if the federal government needs a different statutory authorization to condemn property for pipelines, that is an issue for Congress, not a reason to disregard sovereign immunity. To be sure, such a change would alter how the natural gas industry has operated for some time. But that is what the Eleventh Amendment demands.
NJ Spotlight’s failure to include the full text of the Court’s “workaround” language did 3 bad things: 1) it allowed politicians like AG Grewal and useful idiots like Tom Gilbert to grossly exaggerate the impact of the decision; 2) it deprived and misled readers about crucial information, i.e. the need to monitor Congress and oppose any efforts on their part to pass legislation to meet the Court’s “workaround”; and 3) it gave a false sense of assurance to anti-pipeline activists that the pipeline was dead, when that is not the case . ~~~ end update]
[Update: In an incredibly cruel irony – homage to Standing Rock – the PennEast pipeline opinion turned on Supreme Court cases denying the Seminole Tribe’s lawsuit against Florida and a Native American tribe’s legal arguments seeking payment of money they were owned by the State of Alaska:
As discussed below, see infra Part I I I- B.3, Congress cannot abrogate state sovereign immunity under the Commerce Clause, Seminole Tribe of Fla. v. Florida, 517 U.S. 44, 59, 72-73 (1996), and because Congress enacted the NGA pursuant to that Clause, the statute cannot be a valid congressional abrogation of sovereign immunity.” […]
Looking in more detail at the caselaw, it lends no credence to the notion that the United States can delegate the federal government’s exemption from state sovereign immunity. In
Blatchford, the Supreme Court dealt with this issue.
In that case, Native American tribes sued an Alaskan official for money allegedly owed to them under a state revenue-sharing statute. Blatchford, 501 U.S. at 77 – 78. Relevant here, the tribes argued that their suit did not offend state sovereign immunity because Congress had delegated to the tribes the federal government’s ability to sue the States. ~~~
end update]
In a serendipitous coincidence, the same day the Court decision was announced, I wrote comments to DEP on deficiencies in the PennEast pipeline permit applications.
Below is that letter, and it focuses on a sure fire mechanism to kill the PennnEast pipeline: DEP can deny the Clean Water Act Section 401 Water Quality Certificate.
We’ve been writing about that and NY State and Connecticut’s 401 WQC denials, and criticizing NJ fools like Tom Gilbert for their failure to focus on it for over 4 years, see:
Media should ask AG Grewal if NJ DEP is willing to pull that legal trigger.
From: Bill WOLFE <bill_wolfe@comcast.net>
To: penneastcomment@dep.nj.gov, “Tittel, Jeff” <jeff.tittel@verizon.net>, “Tittel, Jeff” <jeff.tittel@sierraclub.org>, jonhurdle@gmail.com, domalley <domalley@environmentnewjersey.org>, bill_wolfe@comcast.net
Date: September 10, 2019 at 4:58 PM
Subject: Public comment on PennEast deficiencies
Greetings – Please accept the following comments on the PennEast pipeline applications for DEP wetlands, stream encroachment and water quality certificate approvals.
I. Permit process – Need to clarify formal pubic notice and comment and public hearing procedures
According the the Department’s September 4, 2019 letter, the application is deficient and not administratively complete.
However, the DEP indicated it would accept public comments at this phase of the permit process.
I am confused by that and request that the DEP clarify the permit procedure for the public. I am concerned that submission of public comments at this phase would appear to assist the applicant in correcting defects that warrant permit denial by the Department.
Will the Department provide a formal public notice and comment period and public hearing between the administratively completeness phase and the technical completeness phase? Will the Department provide formal public notice and comment period and public hearing after the Department deems the application technically complete? Will the Department provide a formal public notice and comment period and public hearing in the event the Department issues a draft permit? When does the mandatory 90 day land use permit clock begin? When does the Clean Water Act’s 1 year water quality certificate clock begin? Have any of these review clocks already begun?
II. Deficiencies
1. Anti-degradation policy for C1 waters
The DEP permit regulations mandate compliance with the DEP Surface Water Quality Standards: (emphases mine)
NJAC 7:7A-10.2 Standard requirements for all individual permits
[(a)]
(b) The Department shall issue an individual freshwater wetlands or open water fill permit only if the regulated activity:
[1.4]
5. Will not cause or contribute to a violation of any applicable State water quality standard;
The proposed PennEast pipeline would disturb and cross numerous DEP designated C1 streams. I have reviewed the PennEast compliance statement: ATTACHMENT G-2 – N.J.A.C. 7:7A Compliance Statement, which provides:
- Requirement: 5. Will not cause or contribute to a violation of any applicable State water quality standard;
Compliance: The proposed Project has been designed and will be constructed in a manner to comply with N.J.A.C. 7:9B (State Water Quality Standards) and adheres to the Statements of policy codified at N.J.A.C. 7:9B-1.5. Pursuant to N.J.A.C. 7:7A-2.1(d), a permit issued under the Freshwater Wetlands Protection Rules shall constitute the water quality certificate required under the Federal Act at 33 U.S.C. § 1341.
The compliance statement – and the permit applications as a whole – are deficient for the following reasons:
The regulatory standard “Will not cause or contribute to a violation of any applicable State water quality standard” – particularly the word “contribute” – requires that the applicant demonstrate and the DEP evaluate background conditions (i.e. conditions effected by existing multiple source impacts and stresses) and the incremental impact of the regulated activity with respect to water quality standards.
Use of the term “contribute” also lowers the scientific burden regarding causation. The DEP is not required to base decisions on highly certain scientific mechanisms of causality, linking a pipeline impact with certainty to an adverse water quality impact and/or violation of water quality standards.
NJ DEP Surface Water Quality Standards include anti-degradation policies, general policies, designated uses, existing uses, numeric criteria and narrative criteria.
The applicant has not affirmatively demonstrated compliance with these standards, policies, and criteria.
The proposed pipeline crisis numerous DEP designated “Category One” (C1) waters. The anti-degradation policy for C1 waters is (NJAC 7: 9B-1.5(d)):
“Category One Waters shall be protected from any measurable changes (including calculable or predicted changes) to the existing water quality. Water quality characteristics that are generally worse than the water quality criteria, except as due to natural conditions, shall be improved to maintain or provide for the designated uses where this can be accomplished without adverse impacts on organisms, communities, or ecosystems of concern.”
Water quality is defined to include physical, chemical and biological characteristics.
The key phrase “measurable change” expressly requires quantification.
Under NJ DEP regulations, valid quantification requires sampling conducted in accordance with DEP QA/QC and sampling protocols and provision of statistically representative and scientifically valid data.
The key phrase “calculable and predicted changes” requires not only statistically representative and scientifically valid quantitative characterization of current water quality conditions, the use of the word “and” before “predicted changes” also mandates projection, or modeling, of future conditions.
Future conditions would include consideration of the potential impacts of climate change – temperature, rainfall, drought, and ecological responses.
Future conditions would include the impacts of allowable buildout under municipal zoning.
Future conditions would include the impacts of allowable buildout under DEP approved water allocation and wastewater capacity and groundwater & septic design standards regarding constraints on septic system density and locations.
The key phrase “existing water quality” requires a statistically representative and scientifically valid characterization of baseline physical, chemical and biological conditions.
Biological features of “existing water quality” and “existing uses” include all aquatic and aquatic dependent organisms, during all phases of their lifecycle, including their habitat.
The key phrase “impacts on organisms, communities, or ecosystems of concern.” requires a comprehensive ecosystem wide analysis.
The key word “shall be protected“ makes all of the aforementioned methods, standards, policies, and criteria mandatory.
The applicant has not affirmatively demonstrated compliance with the anti-degradation policies for C1 waters.
Water quality is dynamic. Dynamic conditions are an essential feature of “existing water quality” and projected future water quality conditions. Disturbance, stream crossings, and development impact future conditions. That’s why the regulations require consideration of “predicted changes”, including whether regulated activity “contributes” to a violation of a water quality standard.
For example, a valid C1 anti degradation compliance demonstration would require at least 4 quarters of QA/QC statistically representative and scientifically valid data to characterize baseline “existing water quality” – physical, chemical, and biological characteristics and organism, community, and ecosystem scales .
In order to determine if “existing water quality” is “protected”, the DEP must know what existing water quality is.
The DEP must know what existing water quality is at each individual point of pipeline crossing or disturbance that may impact a C1 stream.
The applicant has failed to provide 4 quarters of statistically representative and scientifically valid data that characterizes “existing water quality” at every crossing or disturbance that may impact of a C1 stream.
In addition to not characterizing “existing water quality”, the applicant has not adequately conducted an impact analysis – including projections of future conditions – that is necessary to determine if disturbance or stream crossings will protect existing water quality, on a temporary or permanent basis.
The C1 policy does not allow for even a temporary change in (lowering of) existing water quality. The rules provide no basis for DEP or the applicant to distinguish between temporary, permanent, and/or irreversible adverse impacts.
Given the above serious deficiencies, the DEP may not determine that the application is administratively or technically complete.
Given these deficiencies, the DEP must require the applicant to provide QA/QC statistically representative and scientifically valid characterization of “existing water quality” and scientifically valid analysis of potential adverse future impacts.
The Department previously applied a Guidance document regarding disturbance of C1 buffers. Perhaps that Guidance document could serve as an initial framework for designing the required characterization of “existing water quality” and analysis of maintaining an avoiding potential adverse impacts on existing water quality.
Similarly, the Department has robust regulations and Guidance on water quality sampling, QA/QC, and protocols to assure statistical validity of data collected.
The applicant has not met these DEP standards.
2. Protection of Existing uses
The SWQS mandate protection of all “existing uses” of the waterbody:
“Existing uses shall be maintained and protected.” (NJAC 7:9B-1.5(a)6.)
“Existing uses” are broadly defined:
“Existing uses” means those uses actually attained in the waterbody on or after November 28, 1975, whether or not they are included in the Surface Water Quality Standards.
Th applicant has failed to provide a statistically representative and scientifically valid inventory and characterization of baseline “existing uses”.
This demonstration would include provision of 4 quarters of data and analysis of future conditions. See above comments on deficiencies in C1 anti-degradation policy for additional flaws in the “existing use” demonstration.
Therefore it is not possible for the DEP to determine if the pipeline project and regulated activity will protect all exiting uses.
3. Water Quality Certification
The applicant is required to demonstrate and the Department is required to determine if the proposed regulated activity complies with all water quality standards surface and groundwater) and will not cause or contribute to a violation of water quality standards – on a temporary or permanent basis.
The applicable regulations do not allow consideration of offsets, averaging or mitigation in making this demonstration an determination.
For the above reasons – and others I yet to comment on – the applicant has not met his burden and has failed to make a valid compliance demonstration and therefore the Department may not make a compliance determination and issue a water quality certificate.
I will be submitting additional comments regarding deficiencies in the application with respect to demonstration of compliance with water quality standards.
Respectfully,
Bill Wolfe
