South Jersey Gas Pipeline - Defeated!
Lessons learned from a six-year battle to defeat this harmful and unnecessary gas pipeline.
By Carleton MontgomeryMay 8, 2019
The South Jersey Gas pipeline has been defeated. This is a huge victory for the Pinelands. It is also a potent statement about the power of public activism, because the most powerful forces in our state pushed to get this pipeline built. Those forces included then-governor Chris Christie, then-Senator Jeff Van Drew, and South Jersey Industries together with its unions and fellow utilities.
The people fighting for the Pinelands were a majority of the public, PPA and our partner groups – particularly Food & Water Watch, Sierra Club, NJ Conservation Foundation, Rethink Energy NJ, Citizens United for Renewable Energy, and Environment New Jersey. Four former governors – Byrne, Kean, Florio and Whitman — and the original leadership of the Commission joined the fight. Special thanks go to PPA’s attorneys at Dechert LLP, one of the country’s major law firms, whose lawyers put in untold hours of work pro bono on this case.
How did this victory happen?
In the end, the Pinelands Commission justified the pipeline on the grounds it would send all its gas to a new power plant at the BL England site on Great Egg Harbor. But our collective opposition bought enough time (six years) for the BL England owner to abandon any plans to build that power plant. With no power plant, the basis for allowing the pipeline simply disappeared.
The project came to public attention in 2013, when South Jersey Gas (SJG) filed its application with the Pinelands Commission. The Commission staff at that point correctly determined that it violated the Pinelands Comprehensive Management Plan (CMP) because it would go through the protected Forest Area of the Pinelands and was not “intended to primarily serve only the needs of the Pinelands.” Succumbing to political pressure, however, the Commission staff decided that the pipeline could be approved through a process called an “intergovernmental memorandum of agreement” between the Board of Public Utilities and the Pinelands Commission – even though this process is only available for “public” development by government agencies, not private commercial ventures.
The collective efforts of citizens, lawyers, technical experts and PPA and our partners gained just enough time for the pipeline rationale to disappear.
In January 2014, this memorandum of agreement came up for a vote before the Pinelands Commission. Pipeline supporters were shocked when the Commission voted it down. But they did not give up.
Two things happened next. First, Gov. Christie managed to replace a Commissioner who had voted “no” with someone guaranteed to vote “yes”. Cumberland County Freeholders did the same with their designee on the Commission. These changes ensured they would have the votes for approval. Second, the Commission staff reversed its finding that the pipeline violated the CMP. They issued a report stating that the exact same pipeline complies and can be built. That 180-degree reversal has to tell you there was something deeply wrong in the state of New Jersey.
The Commission also made two mistakes this time around. First, the executive director decided to approve the pipeline without a vote by the full Commission. Second, she premised her approval on the idea that the pipeline would exclusively serve a power plant to be built at the BL England site, a parcel of land at the very eastern edge of the Pinelands. Saying that any one user anywhere in the Pinelands is enough to show that a pipeline “primarily serves only the needs of the Pinelands” is a dangerous twisting of the rules. But that seems to have been the only way its supporters could approve this project.
Facts Ignored by Commission and BPU
The Commission staff and Board of Public Utilities repeated SJG’s unsupported claims that a power plant at BL England was needed for reliable electric service to people on the Shore. We hear these arguments a lot, and we are always skeptical. In this case, we pointed out that the claim had no factual basis and that the BL England owners had not even promised to build a new power plant, so the whole justification was theoretical in addition to its other faults.
We also found that it was technologically absurd to claim that the entire capacity of this pipeline could be used by the proposed power plant. In fact, the pipeline was designed to carry four times as much gas as the proposed new power plant could use. But facts rarely seem to matter when developments have this kind of power behind them.
We challenged the executive director’s decision on the merits and on the grounds that she doesn’t have the authority to approve major projects on her own. The Appellate Division of the Superior Court agreed she lacked the authority. In November 2016, the court sent the matter back for consideration by the full Commission.
So we fought the project all over again before the Commissioners. The Commission refused to hold a proper evidentiary hearing to air out the real facts regarding this project and proceeded to a vote based on the executive director’s recommendation. In February 2017, at a meeting attended by more than 1,000 activists, the Commission approved the pipeline on the basis that it would serve a power plant to be built at BL England.
Again we appealed, along with Sierra Club and Environment NJ. Governors Byrne, Florio and Whitman filed a friend of the court brief opposing the Pinelands Commission actions.
The parties filed their briefs and waited for another year and a half until January 2019, when the court notified the parties it would have oral argument on the case in March. PPA had been gathering information. We found that the owners of BL England, a Texas business called Rockland Capital, had actually done nothing to start the process of building the power plant. That made sense because improvements to the electric grid and changing industry economics meant it was no longer going to be so profitable to build a new plant there.
We took this information to the Attorney General, and within hours Rockland Capital was compelled to file papers with the court asking to be removed from the whole matter since it no longer intended to build a power plant. SJG had said nothing. Two hours later, the Attorney General filed papers saying Rockland Capital’s announcement means there is no basis for approving the SJG pipeline. A few days later, the Pinelands Commission wrote to SJG stating that if it wants to build a pipeline, it will have to file a new application.
The collective efforts of citizens, lawyers, technical experts and PPA and our partners gained just enough time for the pipeline rationale to disappear. While the court will not rule on the merits of our challenge to the Pinelands Commission approval, the pipeline will not be built.
Anyone taking on the Pinelands now knows that even if they line up all kinds of political support they are taking on a formidable community of opponents and risk losing their shirt. Our next job is to make sure the Pinelands Commission is never again willing to approve such a damaging development by twisting Pinelands protection laws.