COURT HOUSE – On Nov. 10, the New Jersey Board of Public Utilities (BPU) heard oral arguments on easements and consents for the running of transmission cables from Ocean Wind I over Cape May County land. Ocean Wind LLC has asked the BPU to step in and grant the required approvals, thereby overruling the county’s elected governing body with whom the wind farm developer could not reach an agreement.
Ocean Wind LLC has proposed a route that brings its cables on shore at 35th Street in Ocean City, runs them underground over municipal and county land and delivers the wind farm-generated energy to an electric grid interconnection at Beesley’s Point.
What’s at Stake?
In September, after hearing arguments on the exact same cable route, the BPU unanimously approved the route when it overruled the elected officials of Ocean City. That action by the board in September led the New Jersey Office of Rate Counsel, a state office that acts as an advocate for the consumer, to state bluntly at this week’s hearing that it will be “virtually impossible for the board to rule against Ocean Wind.”
Rate Counsel effectively argued that the decision on the current Ocean Wind LLC’s petition was already clear and unlikely to be influenced by the oral arguments. In short, the hearing underway this week was an action that must be endured in the service of a decision already known.
The issues at stake are specific to the transmission cable route, but also center on the threat this process poses to home rule and local government control.
Attorney Michael Donohue, representing Cape May County, said the BPU is disenfranchising the county’s voters with any action that grants Ocean Wind’s petition for its preferred route. The elected governing bodies of both the county and Ocean City have rejected the route plan as it is currently constituted. They, Donahue maintained, are the officials elected by the voters to make such decisions.
Ocean Wind LLC
The arguments of the wind farm developer are based on a strict and narrow interpretation of what state law requires. They claim that 2021 legislation gives the BPU new powers to override decisions made by municipal and county governing bodies. They assert that Ocean Wind LLC need do no more than show that its preferred route is “reasonably necessary” for the construction of the Ocean Wind I approved wind farm.
Attorney Gregory Eisenstark said the statutory standard did not require the company to demonstrate that this route was absolutely necessary, that it was the least expensive or that it was the only possible route. “The only requirement is that the preferred route is shown to be reasonably necessary,” he said.
Eisenstark called the route selection process thorough and well-documented. As he expressed it, Ocean Wind LLC’s analysis resulted in a route that impacts the fewest stakeholders across a wide spectrum of variables.
Eisenstark also said the company had made numerous attempts to reach agreements with both the county and Ocean City prior to asking the BPU to intervene. He reminded the board that the contractual construction schedule of the wind farm required a decision on the route now.
County of Cape May
Donohue challenged all of Eisenstark’s assertions. He said the analysis of the preferred and alternative routes had not been shared and the process had allowed for no discovery of information. He argued that the long-term impact of these decisions means they cannot be driven by construction schedules but rather demand careful examination and resolution.
Donohue reminded the board that the legislation they relied on for their authority in this matter was new law as yet untested in the courts.
Donohue challenged Eisenstark’s comments on the reasonably necessary standard. The standard calls for a balancing of interests, Donohue asserted. He claimed the county officials could not sign off on the preferred route because they had not been provided with all of the analysis that went into its selection.
Donohue made clear that there are two separate issues facing the board. One involves the granting of both temporary and permanent easements across county land. The other is providing the local consent necessary for Ocean Wind I to proceed with applications for DEP permits necessary for construction.
At this point, Donohue offered a compromise position. He said the board could provide the needed consent to allow the environmental and permit analysis to proceed while withholding any decision on the easements until those reviews are completed and available.
Ocean City and Other Municipalities
Both Ocean City and Upper Township were given intervenor status in the proceeding. Upper Township elected to offer no comments at the hearing. Ocean City used much of its time to reiterate the arguments the municipality articulated before the BPU overrode their objections and approved the cable route with respect to Ocean City land.
Ocean City Solicitor Dottie McCrosson endorsed Donohue’s suggestion that the board split the two decisions at issue, allowing the consent for state permitting processes and holding off on any ruling regarding the easements.
Attorney Paul Baldini represented nine municipalities that had been granted participation status. The municipalities are Sea Isle City, Avalon, Stone Harbor, North Wildwood, Wildwood, Wildwood Crest, and the townships of Dennis, Middle and Lower.
Baldini challenged the BPU’s authority in the matter and asserted that the BPU is engaged in a “cavalier” taking of land from Ocean City and the county. He said the municipalities he represented were concerned with a process that overrode local control of municipal land.
Baldini also began to insert the concern the municipalities have for the negative impact the wind farms could have on tourism. At this point, BPU President Joseph Fiordaliso reminded Baldini to limit his remarks to the matter at hand, that being the petition concerning the cable route. Baldini replied that his remarks were being “suppressed.” Baldini frequently appeared to be setting up a record for potential legal action, noting that the municipalities were not waiving their rights by participating in the hearing.
Rate Counsel
Rate Counsel Director Brian Lipman said the evidentiary record was “fundamentally flawed.” He added that the limiting of discovery concerning alternative routes meant that “due process was not afforded.”
Lipman said the BPU decision to separate the Ocean City and Cape May County considerations concerning the exact same route had left the public confused. It was here that Lipman made his statement that the decision on the county matter appeared certain since any other alternative would undermine the decision already made with respect to Ocean City.
Rate Counsel stated that it could not take a position on the petition before the board because it did not have “sufficient information.”
The Board
In addition to Fiordaliso who presided over the hearing, four members of the board made brief comments at the end of oral arguments. They all stressed the board’s commitment to transparency, promised careful review of the arguments and sought to reassure the public that they were committed to a thorough consideration of all evidence before making a decision.
One board member, Diane Solomon, seemed most sensitive to the county’s argument concerning the lack of discovery in the process.
Thoughts? Questions? Email vconti@cmcherald.com.
