The fate of the South Jersey Gas pipeline is on hold, after a state Appellate Court decision that sends the application back to the Pinelands Commission.
Commission Executive Director Nancy Wittenberg did not have the authority to unilaterally determine the pipeline met all the commission’s requirements, according to the Superior Court of New Jersey’s Appellate Division.
Commission staff declined comment Monday, as did the state Attorney General’s Office, which represented the commission.
“This is not only a big relief, but I think it’s the biggest court decision in protection of the Pinelands in its history,” said Sierra Club of New Jersey Director Jeff Tittel. “It’s a major slap in the face to Whitman and to the Christie Administration.”
South Jersey Gas President Jeff DuBois stressed the limited nature of the decision, saying it only dealt with procedure and “cited no exceptions to the merits of or need for the pipeline.”
Wittenberg decided on her own that the application met the commission’s requirements in August 2015, and then reaffirmed her decision in December 2015, clearing the way for approval by the state Board of Public Utilities.
The Sierra Club of New Jersey, Environment New Jersey and the Pinelands Preservation Alliance then filed lawsuits.
Two separate decisions were released Monday by the Appellate Court, with one sending the application back to the commission and the other ordering the BPU to amend its approval to be conditional upon a new decision by the commission.
The Sierra Club focused on Wittenberg’s lack of authority in its legal arguments, while the other groups also challenged the merits of the case, on which the court did not rule.
“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,” DuBois said in a written statement. “Certainly, we are disappointed that these events will continue to delay the construction of this vitally important natural gas supply line.”
SJ Gas calls it the Cape Atlantic Reliability Project and has argued the pipeline will not only repower the B.L. England Generating Station to cleaner natural gas, but will also be a backup gas line for 142,000 customers in Atlantic and Cape May counties.
DuBois said the company is reviewing the court decision and evaluating its next steps.
The fact that the pipeline needed to go through a coordinated permitting process that involved other state agencies is key, the court said.
When a coordinated permitting process is involved, the executive director cannot decide on her own or with staff whether an application meets the requirements of the commission’s Comprehensive Management Plan, the decision said.
“Here, the Commission retains final decision making authority,” according to the decision.
South Jersey Gas’ initial application for the pipeline as a public development was rejected by commissioners on a tie vote in January 2014.
Then South Jersey Gas made changes in its application and came back in May 2015 to the commission, this time saying the pipeline was a private development that didn’t need a vote by commissioners.
Pipeline proponents “tried to do an end run around the members of the Pinelands Commission,” said Doug O’Malley, director of Environment New Jersey. “The court has decisively rejected that kind of politically driven shenanigans.”
The 22-mile pipeline would run along roadways from Maurice River Township to the B.L. England Generating Plant in Upper Township, and allow it to convert from a coal-fired to natural gas plant. The state Department of Environmental Protection will not allow the plant to continue using coal after 2017 because of air pollution concerns.
The pipeline would pass through 10 miles of protected Pinelands Forest Area, under roadsides or paved roads.
Former governors Brendan T. Byrne, James Florio and Christine Todd Whitman joined the case as friends of the court in opposition to the pipeline and what they perceived as a weakening of the commission.
“This decision sets a fundamental precedent that the Pinelands Commission must review developments in the Pinelands,” said Carleton Montgomery, executive director of the Pinelands Preservation Alliance. “The Commission cannot delegate that core responsibility to its staff or to other agencies like the Board of Public Utilities.”
The Board of Public Utilities approved the project in December 2015, relying on the commission’s decision to make its determination.
The BPU has also approved a plan for South Jersey Gas to bill the B.L. England plant for 40 percent of the pipeline’s estimated $90 million cost, and general ratepayers would pay the other 60 percent.
“The commission is going to have to come up with way of dealing with the issue,” said Tittel. “We have a lot of work ahead of us dealing with the Pinelands Commission, especially since Christie and Sweeney have stacked the commission.”
After the January 2014 no vote, two commissioners who voted against the pipeline were replaced by Christie or by the county government that made the appointment.
Cumberland County freeholders replaced longtime commissioner Leslie Ficcaglia, of Port Elizabeth, with real estate professional Jane Jannarone, of Vineland.
And Christie replaced Robert Jackson of Middle Township with Bob Barr of Ocean City.
Tittel said further legal action might be needed.
“This was only a procedural challenge. We may have to go back on a merit challenge,” said Tittel. “But this buys us time.”
It will also act as a precedent that should help the Sierra Club in a similar challenge against the Southern Reliability Link pipeline New Jersey Natural Gas wants to build through parts of the northern section of the Pinelands, said Tittel.