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 — 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.
Beginning in 2013, South Jersey Gas proposed to build a 22-mile, 24” high-pressure natural gas pipeline across the Pinelands Forest Area of Cumberland and Cape May Counties. In the Forest Area, the Pinelands Comprehensive Management Plan (CMP) only permits infrastructure like pipelines if they “primarily serve only the needs of the Pinelands.” Projects that do not serve Pinelands needs, but are intended for users outside the Pinelands or other purposes, are forbidden. This pipeline would not have served any need of the Pinelands but was pushed forward for other economic and political reasons. For that reason, PPA and many allies fought the pipeline for six years. As of March 2019, the project has been defeated.
Issue Location Map:
How We Beat the Pipeline
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.
There are lessons in the last six years of struggle. Especially when you consider all the things the Pinelands Commission and politicians did to push the pipeline through despite public opposition and numerous setbacks.
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.
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.
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 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 actually 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.
History and Timeline
May – July 2013: South Jersey Gas and the company that owns B.L. England, Rockland Capital Cape May Holdings, received permits from the New Jersey Department of Environmental Protection.
January 2014: On Friday, January 10th, the full Commission voted on a resolution that would have authorized the Commission’s Executive Director, Nancy Wittenberg, to enter into a Memorandum of Agreement with the New Jersey Board of Public Utilities allowing the construction of a 22 mile, 24 inch diameter natural gas pipeline.
The final vote was tied 7-7 resulting in a stunning victory for the environment. They needed 8 votes in the affirmative in order to advance this project.
- Read Commissioner Lohbauer’s full statement here. He makes a very strong case for his “no” vote.
April 2014: Cumberland County removed a crucial ‘no’ vote on the pipeline by replacing Leslie Ficcaglia as the Cumberland County representative on the Commission
May 2014: Governor Christie made nominations to replace two of the Pinelands Commissioners, Robert Jackson and D’Arcy Rohan Green, who stood up to the political pressure and voted against the South Jersey Gas/Rockland Capital pipeline deal.
March 2015: The New Jersey Senate voted to confirm Robert Barr’s appointment to the Pinelands Commission to replace Robert Jackson. D’Arcy Rohan Green’s seat was protected.
May 2015: South Jersey Gas made minor changes to their application and resubmitted it to the NJ Board of Public Utilities (BPU) and the Pinelands Commission
August 2015: The Pinelands Commission issued a Certificate of Filing for the South Jersey Gas application. A video of the meeting is available here. In a stunning move, the Executive Director decided she would not allow the full 15-member governing board of the Commission to review the matter. She stated that the project complied with the Comprehensive Management Plan.
December 2015: The BPU approved the petition from South Jersey Gas that would waive all municipal land use ordinances and regulations in relation to the construction of the pipeline. The BPU did not directly address the potential impacts on the Pinelands. PPA filed appeals against the BPU on this decision.
November 2016: The Appellate Division of the Superior Court agreed with us that the Pinelands Commission and Board of Public Utilities improperly approved the controversial South Jersey Gas pipeline without a review and decision by the full membership of the Pinelands Commission. The decision was sent back to the full Pinelands Commission for a review.
December 2016: The Pinelands Commission approved the process by which they would review the South Jersey Gas pipeline application, which did not include a public hearing with sworn testimony. PPA filed an appeal of this process.
January 2017: The Pinelands Commission held a public meeting during which they took comment on the South Jersey Gas pipeline. Over 100 people were locked out of this meeting and were forced to stand in cold rain waiting to enter.
February 2017: The Pinelands Commission voted 9-5 to approve the South Jersey Gas pipeline before hundreds of opposed residents. See a link to the video here:
Voted to approve the pipeline: Commissioners Sean Earlen, Paul Galletta, Bob Barr, William Brown, Joe Chila, Jane Jannarone, Edward McGlinchey, Gary Quinn
Voted against approving the pipeline: Commissioners Candace Ashmun, Edward Lloyd, Mark Lohbauer, Richard Prickett, D’Arcy Rohan Green
Abstained: Commissioner Frank Hays
March 2017: PPA, New Jersey Sierra Club, and Environment NJ filed appeals of the Pinelands Commission approval of the pipeline. These appeals are still pending.
March 2019: The Appellate Division of the Superior Court notified the parties that it would have oral argument on the appeal in April. PPA and its attorneys raised the fact that Rockland Capital did not appear to have taken the steps it would have to have taken to build the power plant at BL England. Shortly after we raised the issue, RC Cape May Holdings’ lawyer filed papers with the Appeals Court stating that their client wanted out of the appeal because it no longer intended to build a power plant, so had no interest in the dispute over the pipeline.
Shortly afterwards, the Attorney General, representing the Pinelands Commission, filed papers with the Court asking that the appeal be adjourned because the basis for the Pinelands approval had disappeared. The Commission then wrote to South Jersey Gas stating that its approval could no longer be used and, if it wants to build a pipeline, it will have to start with a brand new application.
April 2019: The Pinelands Commission introduced a resolution to rescind their approval of the pipeline application. The day before the vote, South Jersey Gas sent a letter to the Commission with objections. The Pinelands Commission issued a statement that the vote would be delayed so their attorneys could review the letter.
May 2019: The Appeals Court remanded the matter back to the Pinelands Commission in light of the BL England power plant withdrawing from the project.
November 2019: The Pinelands Commission introduced a new resolution to address the pipeline’s status, but the vote never happened because not enough Commissioners were present at the meeting.
January 2020: The Pinelands Commission voted on the resolution that was introduced in November. Four Commissioners voted for it, five voted against. During discussion, some Commissioners expressed that it is the role of the staff, not the Board of Commissioners, to communicate change of status with applicants. This lack of action ignored the remand from the Appeals Court, which directed the Commission to reconsider their approval of the project.
- Read RC Cape May Holdings’ attorneys filing with the Appeals Court
- Read the NJ Attorney General’s letter to the Appeals Court
- Read Pinelands Commission Executive Director’s letter to SJG
- Read PC’s April proposed resolution withdrawing approval of SJG
- Read South Jersey Gas’s letter to Pinelands Commission
- Read PC’s November proposed resolution halting SJG project
The SJG “Cape Atlantic Reliability Project” is a 22-mile, 24” 700 psi natural gas transmission line that would run from Maurice River Township to Beasleys Point in Upper Township, through the Forest Area of the Pinelands. The Forest Area is one of the most ecologically sensitive areas of the Pinelands. The Comprehensive Management Plan (CMP) prohibits public service infrastructure development (like pipelines) in the Forest Area unless it primarily serves only the needs of the Pinelands. The SJG pipeline, in contrast, would service a private power plant and South Jersey Gas and Atlantic City Electric customers primarily outside the Pinelands.
The South Jersey Gas pipeline violated the Comprehensive Management Plan in the following ways:
- The pipeline is designed to carry four times as much gas as the BL England plant could use, and more than twice the capacity that SJG has contracted to provide to the BL England power plant.
- The mere fact that BL England is inside the Pinelands boundary does not mean gas to the plant primarily serves the “needs of the Pinelands” (even if the pipeline did primarily serve the power plant).
- SJG has consistently said the pipeline is being built for – and most of the cost paid by – its ratepayers, the vast majority of whom are outside the Pinelands.
- Ratepayers have first claim on all gas transported by the new pipeline, and SJG’s agreement for BL England is not even a firm contract.
- The great majority of South Jersey Gas customers are outside the Pinelands.
- The vast majority of electricity customers and demand to be served by BL England are outside the Pinelands.
- Repowering the BL England plant is not necessary, either to Pinelands customers or anyone else, according to updated PJM Interconnection findings, so the pipeline would not “primarily serve only the needs of the Pinelands” even if it only went to the power plant.
- When the Pinelands Commission staff found the pipeline violates the CMP, it had all the information then as it has now – so there is no valid justification for doing an about-face.
- The pipeline will bring impacts and risks to water and other resources that neither SJG nor the Pinelands Commission has addressed or resolved.
Details on each point can be found in our submissions to the commission here: