Appellate Court Sends Gas Pipeline Plan Back to Pinelands Commission

TRENTON – Pinelands Commission Executive Director Nancy Wittenberg’s Dec. 14, 2015 letter that found South Jersey Gas Company’s proposed pipeline to the B.L. England Generating Station in Beesley’s Point met minimum standards of the Pinelands Comprehensive Management Plan (CMP) must be returned to the Commission for a final determination. 
A state Appellate Court decided Nov. 7 that Wittenberg lacked authority to make that determination, which rests only with the 15-member Pinelands Commission. It sent the matter back to the commission to ascertain whether the utility plan would comply with Pinelands rules.
In a 32-page published decision, the Court weighed arguments of the Pinelands Preservation Alliance, New Jersey Sierra Club and Environment New Jersey, and amici curiae (friends of the court) former governors Brendan T. Byrne, Thomas Kean, James J. Florio, and Christine Todd Whitman. The former governors believe that the pipeline would compromise the integrity of the Pinelands Comprehensive Management Plan, making their sentiments known Dec. 9, 2013.
The “appeals arise from a proposal by South Jersey Gas Company (SJG) to construct a natural gas pipeline through several municipalities in the Pinelands Area.”
Others taking part in the case were RC Cape May Holdings, L.L.C., which owns the plant that is under orders to stop using coal and either convert to a non-polluting fuel source or cease operation.
The Board of Public Utilities (BPU) granted a petition Dec. 16, 2015, by SJG and determined that the Municipal Land Use Law (MLUL), and any local governmental development regulations adopted under the MLUL, would not apply to the construction or operation of the pipeline.
The environmental groups contested that decision and Wittenberg’s earlier determination.
The court affirmed the BPU decision, “but remand the matter to the (BPU) for entry of an amended order stating that approval of the petition is conditioned upon a final decision of the Commission that the pipeline conforms to the CMP.”
The B.L. England Generating Station is a 447-megawatt electricity generating facility that is powered using coal, oil, and diesel fuel. It provides electric power to the Pennsylvania, New Jersey, and Maryland markets.
In 2006, the New Jersey Department of Environmental Protection (DEP) ordered Atlantic City Electric Company (ACE), which was then the owner of the station, to meet certain emissions standards, repower, or shut the station down. In 2007, ACE sold B.L. England to RC Cape May Holdings (RC), an affiliate of a Delaware limited liability company, Rockland Capital.
The gas utility proposed a pipeline; that would run eight miles through Upper Township, dedicated to the B.L. England plant so it could meet state air quality mandates, that would run through part of the Pinelands.
The utility also proposed “a ‘reliability line’ that would run about 14 miles from Maurice River Township to the interconnect point/regulator station in Upper Township, where it would connect to SJG’s existing transmission and distribution systems and serve as a secondary source of supply for SJG’s customers in Southern Jersey during a natural gas emergency.”
That pipeline would be constructed within three state regulatory Pinelands management areas: the Pinelands Rural Development Area, the Pinelands Village, and the Pinelands Forest Area.
“On Jan. 3, 2014, Wittenberg issued a report recommending that the Commission approve the memorandum of agreement (MOA). She explained that the project would serve two purposes: (1) permitting the repowering of BLE; and (2) providing SJG with the ability to supply natural gas to its customers in Atlantic and Cape May counties in emergencies.
“At the Commission’s meeting Jan. 10, 2014, the Commission members considered a resolution authorizing Wittenberg to execute the MOA.” On that day the commission vote went 7-7 with one member recusing himself, thus denying the utility the needed eight votes.
Because of that, in July 2014, Department of Environmental Protection agreed that RC would have until May 2017 to comply with its 2006 order.
PJM Interconnection, L.L.C., which links power grids in the region, stated that B.L. England was “vital to the relevant service area” given the fact that the Oyster Creek Nuclear Generating Plant would be closing.
In August 2015 the Pineland Commission’s Director of Regulatory Programs found that the utility’s application was complete and issued a Certificate of Filing.
Wittenberg advised the Commission that after the issuance of the COF, SJG could continue its MLUL proceeding before the Board. Wittenberg told the Commission that after the Board’s proceedings, staff would review the application another time to ensure compliance with the Pinelands Management Plan.
“We therefore conclude that the Board’s reliance upon Wittenberg’s determination was misplaced. Consequently, the Board’s Dec. 16, 2015 order must be amended to state that approval of SJG’s MLUL petition shall be conditioned upon issuance of a final decision by the Commission finding that the pipeline project meets the minimum standards of the CMP.”
“We also remand the matter to the Board for entry of a modified order, stating that the approval of SJG’s petition under (state law) is conditioned upon the Commission’s issuance of a final determination finding that the pipeline project meets the minimum standards of the CMP. In all other respects, the Board’s decision and order of Dec.16, 2015, is affirmed,” the court wrote.
President of SJG Jeff DuBois issued the following statement Nov. 7:
“Today, decisions were issued by the Appellate Division of the Superior Court of New Jersey regarding the consolidated appeals on the approval of the Cape Atlantic Reliability Pipeline that would serve the B.L. England generating station and reinforce our system reliability for the more than 142,000 residents and businesses in Atlantic and Cape May counties. 
“The decisions reaffirm the assessment conducted by the New Jersey Board of Public Utilities regarding the proposed pipeline, and refer the final decision regarding the compliance of this proposal with the Pinelands Comprehensive Management Plan to the Pinelands Commission. 
“Although the court’s ruling identified a procedural exception to the approvals received that will require further regulatory actions, it is important to note that they cited no exceptions to the merits of or need for the pipeline.
“Over the last three years, South Jersey Gas has worked collaboratively and cooperatively with all of the governing agencies involved in this project and, subsequently, received their approvals. That process elicited extensive review which has produced a comprehensive formal record of both support for and opposition against the project, weighing the views of stakeholders both directly and indirectly involved with and impacted by this project. 
“Certainly, we are disappointed that these events will continue to delay the construction of this vitally important natural gas supply line. However, we believe that the need for a secondary feed to South Jersey Gas customers in Cape May and Atlantic counties, and the opportunity for the B.L. England facility to use cleaner, more efficient natural gas to generate locally sourced, lower-cost power for residents cannot be ignored. 
“We continue to review today’s court decision and evaluate our next steps as part of our ongoing commitment to serving the natural gas needs of the residents and businesses in the region.”
“The precedent set with SJG will pose additional legal hurdles for Southern Reliability Link, the other major pipeline proposed for the Pinelands by New Jersey Natural Gas,” according to Carleton Montgomery, executive director, Pinelands Preservation Alliance (PPA).